Smith v. State

Reynolds A. Smith William and William J. v.

State Tennessee. (Knoxville, September Term, 1958.) July 27,

Opinion filed 1959. September Rehearing denied 1959. Bey- A. Nashville, William

Cecil D. Bbanstetter, plaintiffs in Balph Vineyard, Knoxville, E. holds, error. Attorney for the General, Assistant E. Fox,

Thomas State. opinion

Mr. Justice delivered Burnett, Court. guilty in error were found first charging

four counts aof five count indictment them with (1) conspiracy to take life Davis Robertson and persons, (2) conspiracy divers other to take the life Copeland persons, (3) of Thomas and divers other con- spiring commit felonious assault with intent com- degree upon body mit murder first of Davis persons, (4) conspiring Robertson and divers other commit a felonious assault with intent to commit degree upon body murder the first of Thomas Copeland persons. plain- and divers other Both of guilty tiffs in were error found and sentenced to serve years than ten Judgment not more for each offense. upon was entered this verdict and the sentences were concurrently. ordered to run alleged each

In count of the indictment it is that the sought person whose life was to be taken and others were “acting agents, employees as and contrac- servants and employees tors, of contractors and sub-contractors transportation of and with a certain motor firm known ** quotation Bas & S Motor This Lines, Inc., is from the first of count the indictment hut the counts other allege substantially allegation the This in the same. necessary bring proof alleged indictments is of the the conspiracy the of within confines the indictment. say

In the we outset feel that fair to in large pages proof, pages record some in assignments page record technical and a 99 brief and throughout of error, the case has been one of the best standpoint tried cases from the of both State privilege the defense that has our It been read. took try days more than a week to case and several were taking proof argument consumed with and the of the jurors placed motion for trial new wherein all of the were upon questions the def and certain stand ense, developed. facts hereinafter to be referred were patient judge unusually painstaking trial fair, standpoint parties. the trial this case from of all developed as Under facts in this record clearly finding (The warranted in facts as follows: preponderance overwhelming in this situation factual developed finding): supports in this record such a A strike was called the Teamsters’ Union Nashville early at B & Motor Lines 1955. The strike was S probably proof off for time but under called a short May During it lasted from until October 2,1955, 16,1955. plaintiff many period error Smith had unin- contacts with the President B & S Motor vited night Lines. A number contacts were late at of these property appear, when Smith at on the times, would probably & the B Terminal in Nashville. The S record without that on of these occasions contradiction some Company, Smith President and used toward the vituperative epithets to his and face, the most violent testimony cursing read. his that we have Smith ever deny it this fact but in effect admits and herein does not says him. likewise His attitude that the President cursed by two three in- this President is also shown or toward stances of his and his actions toward this demeanor Company, if and of his threats toward President, employees to to drive continued hire “ununion” pull larg’e trailers or trucks motor tractors these belonging to the B & Lines. S going &

At the B this strike was S hired inde- time pendent own cab or to use their and others contractors independent contractors’ motor, is, motor, cab transport large pull different trucks to particularly points the B & S from the terminal of in Charlotte, Nashville terminal Motor Lines its plaintiff in error actions of North Carolina. These happened times in a were shown have number of Smith and around Nashville. B & Lines sent two of these

In S Motor June, large at from their Nashville trucks, different hours, of these their North terminal. terminal to Carolina One Saturday, and 11th, Nashville on June trucks left his home out motor drove driver and owner place parked at the truck some Manchester near spent away home and from his home. He went 6 miles during day night. next which Sometime way Sunday, through on his Knoxville left and drove filling to North Carolina. arrived He at station in just practically which is Knoxville across the street from Temple the Labor where the offices the Teamsters Union were at located, time, that at about 10:00 o’clock night. This motor left there that time and aronnd just County when within Knox and before arrived at County operator the Sevier line the of this truck testifies that for some little before the distance, event hereinafter following to be related ears occurred, had been truck this —they pass ordinarily just not did as cars did—and that got County before he into Sevier this car, which was a (it two-toned red and General white Motors car not was Pontiac), passed known a whether it was Buick or a very and in a truck few minutes car came back toward high speed bright lights them at a rather rate with his just passed this car on and them a shot or shots were certainly fired at this truck. It is that this inferable car passed immediately one that was same had before. says they got quarters This when driver some three of a top away, they stopped of a mile at hill, were to find where the truck able was hit. Later when developed got over North Carolina it into that one of the (the inside front truck carries tires dual in tires front) been shot into and the bullet that was found was taken out this tire and turned over to the officers.

Later B another truck of the & S Motor Lines left pulled by being Nashville, motor owned an inde- pendent operated by Copeland. contractor one This through high- truck and on out came Knoxville the same way North Carolina. This truck toward hour some or more behind the truck related. above The driver of truck red and this testifies a similar white two-toned passed them and then came back car toward with them throngh lights bright the windshield

their and shot on striking steering rico- wheel and the ballet trnck, cheting track This ballet recovered off cab. After as a 38 caliber ballet. and identified in the evidence shooting other shots like- track, into the there shooting All of this occarred wise at track. shot Sanday, midnight 1955. 12, aroand Jane on plain- contradiction The record shows withoat agent assistant tiff in error who was basiness Smith, aboat Nashville, left Nashville sometime Union night, arriving Satarday midnight 1955, Jane Farragat registering at Hotel aboat Knoxville and regis- morning, Sanday 12, 1955; Jane 6:45 A.M. parked an name and the car which tered ander assamed Farragat garage of his own the Hotel in he drove the driving he was a the that was new red that car name; Baick which he from two-toned had borrowed white night Sanday the Nashville; on that aroand someone the time the first track was at the at aboat o’clock, 10:00 Temple, filling from the Labor Smith re- across station Farragat the at Hotel and went a call the down ceived getting get garage he had some troable in car; his registered ander a different name from he it becaase delay was to this in; car dae he that in the which finally, got (the he car little when the oat carsed a very alley), away it oat the he drove drove attendant jary rapidly; within what the coaid have foand, that then Temple there and went to the Labor he left the time from highway, shooting ap this the coaid taken and on have place this aatomobile. This aatomobile which was from corresponded with one that it was driven Smith which the one from the shots came and which as testified following tracks. these was Sunday night o at ’clockafter abont 12:45

On this same Maryville midnight, hospital was to a Smith admitted through fleshy part gunshot a his arm wound with gunshot this wound was made with a elbow; near hospital at that that Smith caliber entered bullet; days hospitalized for three or four time and was some hospital far as rec- no one took him the but he taken at the time. When he able was shows was ord to Nashville. back home by a local florist that also shows while record hospital the local him in the Union sent

Smith flowers.

Smith refused tell doctor law enforcement merely got telling them how shot, at time officers mentioned or how accident. one was him it was an No investigated by though happened it was even County and the law enforce- of Blount office Sheriff’s ment officers of State. years happenings who two after these woman

Some local Teamsters officeat Knoxville in the worked Congressional hearing to certain before Union testified present Upon learning indictment for of this facts. parties. brought against conspiracy Thffi 'Friday shoot- before this herein that testified woman Reynolds plaintiff ing received in error occurred to long that from Nashville talked call distance a say All heard them was plaintiff in Smith. she error Farragut”. inference that Of course the Smith “the Farragut coming stay going Hotel was at the days shooting after the but A few to Knoxville. over Reynolds hospital Maryville, at in the Smith while merely flowers sent Smith but have her to ordered say on card, a “from friend”. About the time, same Sunday shooting, Monday night and after this on she says Reynolds that made remark that was some there shooting night before and if the bullet not hit steering it wheel would have killed one these driv- length ers. She also testifies as to the of time that she prior January, for this worked Union which was they until November, 1956, as to time moved their Temple. officesfrom Walker Boulevard to the Labor Temple sight Their officeswere in the Labor of this filling foregoing place. at the station time the events took This witness likewise that there states was a 38 caliber magnum Friday pistol hap- on the safe before these Sunday Saturday penings gone; and that it was that plaintiff Reynolds she in error and the and two other people had access to safe. The does record not show happened pistol. Reynolds what to this and Smith, both happened stand, of whom took the do tell what to the pistol pistol where went. She described to the expert drawing officers and an made of this kind of a pistol (a magnum 38). identified it as and she that kind way magnum they get pistol This is the record. experts testify Other officers who were the matter shooting; to the that were found after bullets that they pistol plaintiff a 38 and that came with in error pistol. was shot with In other Smith words clearly only infer, could is the inference draw could from this evidence, these shots into trucks and the one shot Smith were from pistol. the same plaintiffs in each took error the witness stand. It Reynolds lady contention of that the

is the who worked incriminating against as Rim to officeand testified things his he had said and as to to, above referred what prostitute. than a common that she was no more actions, says was he at time that he elected He knew that January agent 1, 1955, local union about business taking January during and all 3, 1955, he office very him. detailed time that there under He she worked definitely had made- time someone as to how at one else uncomplimentary her her and he found remark to some trying crying says, to when he he then was she, so says He that he inter- her, him. had comfort seduced He at then on out. likewise with her will from course says this that that he did not fire her for reason but she being was later for short in her accounts. fired clearly proof contrary to found against her that made were unfounded. statements he shooting Beynolds says Sunday this on the before night his that he took mother-in-law occurred that (he staying was his she did not take wife because church babies), with after church went home Temple meeting at which was to occur the Labor meeting for a mini- o he was this 2:00 ’clock and that testimony says his that the mum of hours. Smith leaving Knoxville, Nashville after that he came reason Saturday arriving in at midnight Knoxville 6:45 meeting morning, at Sunday attend A.M. says Sunday that he Smith afternoon. o’clock on 2:00 overslept sleep and did hotel room and his went to nearly meeting get over until it was with. to the meeting Beynolds says over that after drinking drinking ar- and was when Smith he started to They story meeting tell then was over. after the rived going getting about something to a restaurant and to eat, Reynolds drinking still while at the restaurant Reynolds taking Farragut and then back to Smith says stayed Hotel Reynolds where Smith that he until night. called him at 10:00 o’clock that Reynolds says that after he left Smith at the Hotel that he County ran around over in Blount after some girls got and more drinks, etc., then that he came Temple back to the Labor and called Smith at 10:00 night girls o’clockthat that he had these Blount Coun- ty and that was the reason that he called him so that they go Smith would come over and would over to Blount County pick up girls. to these plaintiffs testify

Both of these in error as to their re- gard yet for their and children wives both in effect brag promiscuous activity about their with women they reg- wherever went. Smith’s excuse or reason for istering at the Hotel under an assumed name that he did so so that he could have a woman with there him. He says got that he called some woman after he to Knoxville (he name) the name of Yiola did remember her last get but he could not with in touch her and that same picked up a was woman that Yiola he had ón the road trip brought months before to Knoxville; that he plaintiffs say her over here. Both of error purpose going County night for their to Blount on this get was to woman or women.

They deny they both, error, shot into any shooting except did at all truck, as hereinafter say they and both that Smith related was shot when trip County midnight on the Blount around were look- got girls ing They from at who off work 1:00 o’clock. say Reynolds, they when were near had to Alcoa, (Reynolds says they himself relieve drove off on a says they stopped side road while Smith on the shoulder road) Reynolds got of the that then ont of the ear and yelled something went to back at Smith about he taillights believed he would shoot the out of with the car gun. says get this old Smith that he had to out for a like way they reason and walked back that and while Reynolds fooling gun there and with this old that is way got says he shot. Smith that he did not feel got the shot at first but later as he back the car under began pain began the wheel that it him and he feel running something the blood down his arm then said he Reynolds should not fool with that “damned gun”. gotten old After back in the car Smith says began he to and feel faint he scooted over out from Reynolds got under the wheel and that then in the ear hospital to and him the let him out drove and at the door hospital the and he of entered as has heretofore been detailed.

Reynolds says him Smith told he went when into hosiptal enough money the that he did not and have get agent Chattanooga with him to in touch another in to money get pay hospital him some to bill because he they got knew what would do with him when him in hospital; Reynolds go that he did not let hos- hurry get pital he was in a to because touch with this Chattanooga get money man and and he did not think anyone’s anything business about that was to know he who was with.

Reynolds says and that he then left drove to Smith Chattanooga person to the and home this other left brought from Nash- Buick automobile that Smith

ville from his there to which he had borrowed friend up; Chattanoog’a car and he man’s cleaned took through to did not come but went on back Knoxville then County him then back to his home in Union came Monday following. morning office Knoxville on Neith- parties though er one of even it was time, these at that being investigated of the State and officers officers anyone shooting County, would as to this tell how things place. these other took None of the Smith and developed Appar- was told. factual situation herein ently, from it was not known until some record, years happening enforcement after officers. to law Reynolds’ most of

Smith statements about confirms says things yet things at as to minor times Reynolds disagree on them. to with he has gives as reasons two automobiles. He his Smith owned why his to Knox- he did not drive two one automobiles his that this friend of liked drive convert- ville was had a convertible that he ible and he Smith friend the convertible he drove loaned the his and that Knoxville, brand new Buick other friend’s being go his at that time used wife automobile was a sick Indiana. see relative Clearly situation under factual could this the Smith auto- reason that did conclude away using from 200 miles its base some and was mobile shooting night (from the into these it did trucks this process being shooting) in the of this himself shot and him. form an alibi for alibis and to The an effort why things happened they these make cer- excuses sounding ringing tainly the or like truth. fall far short sounding far more of the The and truthful reasonable parties whole in the car situation is that were the shooting who did the these into trucks. questions

Clearly things for all of these jury pass given weight the on, the to be the is, various infer witnesses, statements the various ences to credi be drawn from their statements and the bility given jury All these witnesses. awas problem. things by All of these are of course foreclosed this verdict. Turner Tenn. State, v. S.W.2d guilty presumed 188. Here are to be defendants beyond question dowe not consider of whether pre a reasonable doubt but whether or not the evidence ponderates against guilt. Clearly the evidence here preponderate, preponderance does not so is other wise under this factual situation. obviously defense an based on alibi. One plaintiffs

witness offered as to the error time night shooting were seen on the here of this Knoxville accepted if his statements are as correct would make it impossible next for these in error to have at been the scene the crime at time it is fixed. along Others this line. It must are offered be remem any bered that defense of like alibi, other fact prosecution, clearly, certainly trial of a must be criminal fully proof, things, established and these fact jury, proof of an is, are left with alibi, other cause. Of course the court on alibi questions great look to these factual situations with being and attention, strictness to avoid misled them, easily easy as alibis are concocted it is an alibi particular honestly mistaken about the witness to be happened. things times that these 459, State, This 187 Tenn. Court said v. Cole its corroboration alibi and 824, S.W.2d evidence weighed and is is to received and to be be with caution obviously any is other This determined evidence. like carefully very and have read must be a rule. correct We clearly feel that it all herein of alibi evidence against preponderate finding of the does not argu plaintiffs their in error in herein. Of course position absolutely and con take the that it is true ment sequently in error are the acts which these of impossible would for them to have committed. accused be though We think that shows otherwise. the evidence Obviously a must on case kind be based circum- of people or who into stantial evidence because those enter conspiracy herein a criminal act do not do open get it into a or out in but enter written contract try to is in a an effort done devious method conspiracy. guilt up of those such cover accused question the reliance on admission questions kind of this to establish circumstantial evidence interestingly ably Crim are discussed Wharton’s seq. et This 980, Evidence, Edition, inal 12th Vol. Sec. says, among things, that: work other ‘‘ may by itself be evidence sufficient Circumstantial proof proof and sufficient of crime commission ’’ a conviction. base which says (page 473): further work This against improper guard verdicts, “In effort sufficiency determining commonly that in stated (1) all the essential facts evidence, of circumstantial hypothesis gnilt, be with the must consistent as that compared proved; (2) is to with all the facts every theory mast other reasonable facts escinde gnilt; hypothesis except (3) the mast that of facts certainty gnilt a of of as to establish snch the accnsed beyond the the a reasonable donbt that convince mind the offense.” accused the one who committed developed think under factual situation We the as ap guilty under this these error are herein only plicable supported rea rule. The facts drawn from these facts cause sonable inference to be course an unbiased such a conclusion. Of mind to reach things ques the inferences to be drawn from are 199 State, for the not for us. Liakas tions v. appears as it see, 286 856. 298, Tenn. S.W.2d When we against preponderate does not here, evidence finding such a should disturb the verdict we question. 191 235 601. State, 617, Cathey v. Tenn. S.W.2d Hughes, Ga.App. 361,

In S.E. v. Woodruff 553, Court said: difficulty prov- recognizes of the intrinsic “The law ** * may conspiracy conspiracy ing sometimes a rela- acts done, the nature of the be inferred from alleged parties, con- of the the interests tion spirators, other circumstances.” many supporting and we this statement are cases There contrary. factual situation From the know none together certainly conspiracy in such is tied herein inescapable way that these it is this record under guilty parties acts parties of the thereto and charged. variously conspiracy.

The books define The fol lowing Conspiracy, taken from 8A and Phrases, Words acceptable applicable it seems to ns is an definition applied of that term as instant the facts case. “ ‘Conspiracy’ is an said to known to offense antedating ancient law, common statute Edward widely recognized I; most definition of which de- conspiracy clares a criminal to consist of combina- persons purpose tion between two or more accomplishing object a criminal or an act, unlawful neither criminal nor or, unlawful unlawful means, concisely expressed, as it has been more combina- persons something two tion of unlawful, or more to do (Page 375.) as a either means or as an end.” ultimate literally this Under definition there are hundreds of jurisdictions cases from of cited most the United in the States. very earnestly assign is

It in the contended of ments error and was at brief, bar of this the prejudicial part Court, that was on of error the Attorney prospec District allowed to ask General to they jurors on the voir dire knew Beck, tive if Dave Jim my high theory or Hoffa, other Teamster on the officials, questions only purpose that the were asked for the prejudicing against jury the defendants. have We jurors this volume, read on examination of the certainly dire, their do not think that voir it bears pur inference. A this voir dire examination is for the juror’s pose advising qualification, counsel of the in presupposing as fact, a matter of terest, bias, his stat utory competence, age, residency, is, etc. The sub- jacent purpose peremp- is to the exercise one’s enable

525 tory challenges. Ala.App. State, 31 18 390, Leach v. So. process, 2d 285. In it has and it held, been seems fairly proper inquiry ns so, that fields of include the juror’s occupation, acquaintanceships, habits, associa- including experiences, tions and other his which factors, People will from Pers, indicate his freedom bias. v. 362 City Ill. 199 N.E. 298, 812; Bozeman, Watson v. 117 5, 178; Mont. P.2d United Mesarosh, D.C., States v. F.Supp. Gray State, 345. case of 191 Tenn. Our v. authority support 526, is cited as in of the S.W.2d by plaintiffs Upon contention here error. made again reviewing supra, Gray this case, v. we do not State, reasoning applicable think that it there is by factual in this situation shown the record case. We accordingly must overrule contention. very ably earnestly argued by plain

It prejudicial tiffs in that there error error committed by Attorney asking the District General they error when on the witness and other stand, if the Fifth Amendment witnesses, did take Investigating before the Senate Rackets Committee objection Washington, question C., D. after to such disclose made defense counsel. The record does not Attorney allowed that the District General was to con questions ques such after tinue before ask tion had been ruled on the Court. The record shows Attorney plaintiff the District General asked Reynolds on error cross examination whether or not objec immediately upon the Fifth Amendment but took jury disregard Attorney the instructed tion the question to that effect. General’s plaintiff

On cross the examination of in error Attorney any Smith him if the General asked he had told regard law enforcement officer or authorities the details ing question how his arm was After this shot. was asked pages colloquy are there several between counsel Objection court. this the statement on the made theory leading* question it that was to the whether or not taken Fifth Smith had Amendment before Washington. Senate Rackets Committee trial very ably rights guarded court of both anything improper objections error to and sustained the questions along especially when it line, looked like question might something improper. lead to that was judge’s jury disregard The trial instruction to the question requiring and in witness to answer prevented constituting prejudicial the same it from er- State, State, ror. Stokes v. Tenn. v. 619; Marable 203 Tenn. S.W.2d 451. lady young Freels,

When the witness who had during Union occurrence of the fac worked tual situation of what these men were indicted and con plaintiff Reynolds was asked what the in error for, victed said to her home to talk when he came with her about the case a short time before it was set for trial, said, she things, among other that he said he was advised go Investigating Union to Com Teamsters’ before compe the Fifth Amendment. This was mittee and take another circumstance tent because was which guilt or could consider to determine the innocence of the Reynolds. defendant large of this record

About two volumes taken are argument up with the heard and on motion for evidence new trial. This evidence was the examination of various jurors during their and conduct the trial well as as the charge very seriously officers who had them. It is of argued kept jury and contended the about how was and they separated, newspapers were etc., and that were brought they allowed to to their rooms and news- read papers newspapers and saw on the street listened to argued the radio and saw the etc. television, It that it jurors quartered separate was error to have the rooms during in the hotel across from the Court House the trial argued jurors per- of case. It is also that the telephones to mitted use in their rooms and the jurors prior balloted on the verdict to the of end the case. jurors, including juror, of the

Each the thirteenth was plaintiffs in examined the error relative to mat- these jury manager The officer, ters. assistant the of Hotel, the employees maids and other of the Hotel were examined regarding these matters on motion for new The trial. evidence taken from these witnesses effect the jury quartered the four different on the rooms fifth floor the Hotel. All of these rooms were within jury the officerwhen view of was in cor- he the Hotel telephone circuits to these ridor. rooms were blocked only so that members of could make calls jurors for room Hotel desk and service. Some of the jurors the radio. listened to Most all of some heard programs; jurors or television one two casts television heard news on the and remembered see- ing defendants on the two television screen but did any any hearing consequence news of remember rela- trial defendants or the tive defendants. One something juror boring he it said read about but was anything paper in the did not see had not day, something heard all all of to that effect. Most jurors papers rela- saw the headlines in the Knoxville tive trial defendants their entered jurors left Hotel. The were taken some three up blocks to a the street restaurant eat and back and walks, were to take some and taken etc., allowed exercise altogether place out to a over for a little exercise quartered They together 7 or weekend. for some were jurors anything days. None was influenced except they or he saw heard about what these defendants Every during them heard the court room trial. one of says absolutely showing this and is no on a there careful reading scrutiny testimony that there was and their any any jurors of these influence whatsoever rendered on they or saw in the Hotel. of them what read Each one bellboy specifically if asked when cokes, delivered anything if in their rooms or what-not to them what- beer they all was mentioned about the case and said soever specifically showing was not. There is no that that there jurors. anybody at them all contacted these As some of way they stopped passed the news stand on the and they something bought magazine or of the As kind. naturally boys hawking their street news crossed things papers headlines on those it, shown, with the were absolutely nothing that it is shown influenced these but juror very succinctly way jurors or other. One one proposition as follows: states say that all like to with credit this, “I would is attorneys, you defendants to these my attorneys. I tried harder in life never defense just. thought give I is the that This first a decision stay just I one. I tried to out of this. I ever had time how that I knew under ci'rcum- to do the best tried * * * honesty. stances. This is in all I know to the best ** my knowledge. say nothing I wonld inter- my thoughts thinking fered with or case, what- anything happened ever. I mean, over there —I anything intently any never listened more or tried my get right. harder life to This honest. I be- group lieve that entire tried hard.” juror feeling, nothing Each had a similar that is, that they that was seen or heard outside while in the jury slightest; room influenced their verdicts in the only thing that the 'lawsuit was decided was the evidence heard from the stand and witness charge of the court. question

This about the misconduct of the separation, their among things other etc., showed that jury after the case was decided the disbanded; that their they occupied rooms which at the Hotel were searched by plaintiffs counsel the in error and certain news- papers were found in these rooms which contained head- plaintiffs lines relative to the in error the Teamsters’ jurors seeing Union. of Some the these, remembered but by they their as actions, above indicated, were conscien- tious and an made honest effort to arrive at a fair ver- they very This dict. record shows that were indeed a high gentlemen. group class of The fails to show record they guilt that balloted on or the innocence of the de- until the fendants after was case to them for submitted purpose. that of Some of them course discussed it with during progress of

each other the the trial. lengthy argument authority Quite a and much is cited support plaintiffs assignments of the in error’s that reading newspapers of the is error. The State jurors makes the that the contention since none by they any papers influenced what in the or other saw complained assignment acts that the of in this error assignment verdict is valid. is such cases This based on State, cases, Carter v. 77 Tenn. and like 440, wherein the that if the in the news courts hold account paper prejudicial likely inter the defendant right reading by his fere with fair of it trial, to a the jurors ground upon will which have verdict be granted. and a are vitiated trial cited new Other cases by proposition. support in error of this place say

In the first we would that the Carter years by many was written this before the case Court (Section (1911) Error Harmless Statute was enacted. T.C.A.) weight authority overwhelming 27-117, by reading prejudicial article is to the effect that the jurors may ground can be a for a trial but it new jury by showing influenced that the was not overcome report irrespective certain contents. of its This was way jurors ly in no that herein, is, that done any things they read saw. influenced of these many proposition, support There are authorities court error when the does not constitute too, should decide case on instructs disregard open fact. heard in court and evidence herein. instruction That very along similar has latter line which A case present is Howell it to in the case v. that contents 955. court 220 The 952, Ark. 247 S.W.2d State, 1952, 278, reviewing in the news- the headlines after in this case charge quoting to of trial court papers, and etc., jurors said this: any appear “In view of the it above does prejudice was shown to have but it resulted, does appear the court’s admonition to the thorough refusing grant and the court was correct in a [Dolan mistrial. In the Dolan case State, Ark. v. supra, 454], it was said:

“ newspapers ‘Now, when are abundant in towns and cities, and hasten to ventilate and to homicides, guess conjecture chimney at or facts, volunteer opinions corner if citizens law, in- rendered competent jurors by reading to serve as such news- paper opinions forming articles, from mere up juries rumor, be would difficult make intelli- gent persons, many communities, for the trial ” such cases.’ certainly applicable applies an

That is comment which applies times, modern factual situation herein. Supreme People Court of Illinois in case of Malmenato, 813, 1958, 806,

v. Ill. 2d 150 N.E.2d discussing citing many length at after cases ended up apt very with statement: accurate rights his

“An is entitled to a fair trial and accused zealously guarded by be counsel, must court and but newspaper merely is not because reversal indicated prints derogatory statement of the defendant some during the trial. To it must rea- reversal, warrant a sonably appear jurors, or at least some prejudiced have influenced or the extent them, been impartial. cannot fair and Such evidence lacking in this case.” snpra, Considering in reference case, the Carter newspaper in 1882 and’ as the case was written articles, (Sec. 27-117, we said before Error Statute the Harmless T.C.A.). We think after an examination now, reading these of here of record the evidence newspapers jurors, jurors things what the before the This at least was said about there no error. it, that is (section 27- error and in view harmless of Statute along T.C.A.) go with what Court 117, we must 916, in State, 524, said Munson v. 141 Tenn. S.W. when this was said: any coming

“This forbids a reversal of case statute any any part procedure to this court of error opinion, after an examina below unless this court is of complained the error of tion of entire record, * # * (Citing authorities) It was affected the merits. that the others, all of as cases, declared those well guilt of a or innocence merits of case is the criminal may such a violation the accused. there be course, Of disregard right ac or some constitutional affecting that would induce cused, merits, how it is difficult to trial; a new but court order see guilty he has been of which one who the offense procedure justly complain at errors convicted can judgment or relation to the which had no direct remote ’’ against rendered them. argument any made difference cannot see

We question might as to a from be made under this one challenge juror voir who states that of the on the dire newspapers,, news- based on has read the these opinion, things paper reports formed an he has dire on their voir examination mere- kind. In such case ly juror prospective opinion that a has an formed from papers reading disqualification is not held opinion require unless it is a fixed which would evidence to overcome. As to such a situation a Federal Court Co., (Union Light Snyder Electric & Power Co. v. Estate say: 301) 8 65 F.2d Cir., 297, this “ showing, plaintiff Based on this counsel for moved panel prospective jurors discharged. that the of being plaintiff motion counsel for denied, then moved jurors that those who had read the article be dismissed panel, from the and this motion was likewise denied. Peremptory challenges were then exercised, and there jury juror remained on the one who had read the head- who had read half the lines, one and two article, who had read entire article.

“Regardless of character of the article, first properly motion was denied because it asked for the discharge panel, only the whole while certain of the panel of the had read the members article in whole part. properly in The second motion was also denied disqualified juror is not from because mere fact something that he has learned of the facts, what or of newspaper printed in a as the are facts of the case.” Manning State, 155 v. Tenn. 292 Our case 266, S.W. reasoning. supports such 451, why assignment reason think another

We this plaintiff is on direct examination be overruled should long speech jury, among amade to the in error Smith things that he said was, and other was done volun response any question, tarily, longer in he no police questions newspaper officers and answered re- porters paper tbat be because be bad read in tbe anwas picture paper and tbat ex-convict be bad seen bis tbe big witb a number it wbicb 10- across bis embarrassed year nothing record old son. There tbe to indicate jury tbat tbe headlines seen members tbe dur- ing any tbe tbe trial of contained case remarks relative to tbe in error other than those contained testimony. Smith’s

Thus it is tbat think this we contention must be over- ruled. discussing previous assignment

In tbe of error, is, tbat separation neglected tbe of tbe we Hotel, tbe very state in a case, tbat recent tbat Steadman v. questions State, 777, Tenn. S.W.2d related to. those herein discussed were considered Court controlling are In likewise here. tbe Steadman tbe case jury separated jurors was one of and tbe was a woman stayed place. They in who one likewise saw television, in but held tbat tbat it etc., we case was shown tbat there prejudice was to tbe defendant thus no and tbat their separation as was shown there did not vitiate tbe verdict. separation improper jurors

It is not an for tbe occupy to in different rooms hotel, like, tbe when they supervision appointed tbe under of the officer are by purpose. and tbe sworn court for See State v. Shawley, 334 Mo. 352, 74; State, 67 S.W.2d Forester v. 252 111, P. 861, State, Okl.Cr. v. Ramos Tex. Cr.R. 48 S.W.2d 286 and others. Attorney

Tbe District G-eneral asked each tbe jurors on their examination on tbe motion for trial new newspaper infor- whether or not these stories other they mation referred to that heretofore had in received very their hotel rooms affected verdict and it the strenuously objected by plaintiffs counsel for the in theory error on allowing jury the that this was the im- peach by judge its verdict. This was overruled the trial properly place so for several In reasons. first jurors put by all these were on witness stand plaintiffs attempt in error in an what show informa- during pendency tion, etc., had reached them of this they trial. After were over to turned the District Attor- ney questions General these were ashed. perfectly proper,

This if for no other reason they put by plaintiffs due to the fact that on attempt happened. error in an what had show necessary putting them inference was to error show influenced the verdict, proper thus it is it to show that had not their answer. place impeaching In the this is second not effect their merely stating verdict. This is that when such and such brought had been before them it did influence they in the but least, them tried on the law they had heard in evidence as court. In the place, presumption third without more, is, course, case on does decide the the law they supervision heard under the and evidence have judge his it is it is and at direction. Thus when attempted things to be shown that certain of the outside from that heard on witness evidence stand brought referred in our them, we discussion before question, any on this is to overcome voir dire it might presumption this that be that did their influence entirely By proper reason of what was said is verdict. jury that it did or it not to state did influence for the think was im- them. For reasons we that no there peachment evidence was the verdict and that proper. ably argned assigned

It as error that the declaring prejudicial trial error in not court committed juror argued a mistrial Daniels because of what is not on his voir that he did let examination; said dire parties had member of know that he at one time been a argument this is the Teamsters’ that Union. propter (on partiality) account of and that thus affectum juror partial actually or that was biased either partiality presumed must his to exist reason of having at Union, been a member of Teamsters’ he the time that was a member he had been fired fight carefully one of the have with Teamsters. We

read the examination on dire and that this the voir find juror this at discloses made no false accusations questions response that time. He testified in asked him he had time for Dairies as worked one Southern supervisor plaintiff a route and that knew the in error he Reynolds sight on his work at Southern because Dairies there with members of the Teamsters’ Union. part asked on this if He was examination duties as his supervisor dealing involved with the Union and his reply was: “At Yes.” was then Dairies, Southern He reply he Union asked did deal with and his was that supervisor not as a connected with them. This (he stated examination was at witness that time being service) on his voir dire for examined of a union at that be was a member time but appar Teamsters’ Union. On the examination was ently acceptable. it was closed and concluded he was nothing examination his examina- in this or There is on trial that shows that this man tion motion new any way by or affected former was biased his associa- tion or with the Teamsters’ Union. Because connection he a member of that Union does not had once been affect just standpoint bim that him biased from alone. make if had wanted to It seems that counsel follow matter they accepted further had not been satisfied when juror they position, in a far better is, that that being representatives plaintiffs in error that Un- whether or not man had and what he ion know been plaintiffs in error was at the done, had etc. One of they the Union. If not connected with been time thought him not and had that satisfied with he would be juror they gone could then into a fair have the matter showing propter We think there no further. af- juror prejudiced juror. that the was a biased fectum, Reading testimony us, his convinces it did trial that he was fair. court, assigned manager

It is as error that the of accompanied by in Knoxville, local a law enforce Hotel occupied room searched Hotel officer, ment plaintiff and on this Smith, in error search found cer they day things, is, that searched after this tain shooting from found certain information that pocket they things in his his coat room, found instead the assumed etc., traffic the name ticket, given A. Smith; that of that this was name W. vio rights searching lating his his constitutional room think We so a search warrant. do because without purely pur any for the secured was evidence ascertaining person pose whether or not the under the Smith. In view of the name was that of fact assumed (Smith) he admitted on the witness stand that he occupy why did that room cited his reasons of oecnpied (to it under an assumed name have women with him) assignment weight. that this of error is of no It is consequently overruled. lay ground

In the to outset, and the for this con spiracy, progress evidence was introduced of a strike in between the labor union and the motor lines. One of the plaintiffs agent in error was assistant business of this labor union at that It is time. that some said of these things begimiing shown in the about the contacts with entirely Smith and the head of this labor union, etc., were they unrelated the defense herein to and that were intro purely plaintiff to duced show in the error Smith person. awas vicious think that this We evidence was showing admissible for a motive for this offense. The you fact when read fits and in this record it all ties so complete picture that it fill a takes to out the sit By uation. to Criminal Evidence, reference Wharton’s supra, legal. kind held As situations the have been contrary. far as find we there are none to the This can complete reading bewill seen cited the section we supra. in Wharton’s Criminal Evidence, ably argued, assigned It is it and error, error was reversible because the was allowed to State in witness show rebuttal that one of their witnesses, veracity good reputation had and Freels, truth, for chastity. very proper was, think, we rebuttal evi This prejudice to this witness dence meet the bias and plaintiffs by the in error which was introduced when attempted pros to show that this witness was a common who with the funds of union, etc., titute had defaulted relationship aggressor in and that an illicit she was plaintiff Clearly Reynolds. in when the with error attempted she to show that was this error entirely proper for character of a woman State contrary. by showing pnrely This to rebnt simply question of fact to deter left Along snpporting said, what we line, mine. have People Cal.App.2d Perez, 276 P.2d 72, see v. United, Bracey U.S.App.D.C. States, 23, 142 v. F.2d 85. proving its On direct examination State president & witness of the B Motor case offered as a S apparently a little This witness book Lines. quite a of notes from which testi which he had number places figures, as to times and and what fied certain reading referring not, said and what objected the court allowed This was notes. his from these notes. Then recollection refresh witness plaintiffs in error took him on cross for counsel when he desired to have this book read examination judge first the trial would not allow At himself. notes plaintiffs in error to read and examine for the counsel judge time, lunch, a later after the trial At notes. these allowing an in not he had made error concluded inspected by plaintiffs counsel for the notes to be these ruling changed and then this his allowed He error. argued by It inspection for error. counsel period is a dis because there time of error this is first the cross examination on his between connection to see he was allowed when examination cross them. examine and then independent thing of an that contractor, the main the jury should was know whether or not there a labor was dispute affecting lines. these motor We think that this clearly weight is a comment on the of not the evidence in right way any such a at all of would violate these parties. just not It was natural comment and one the injurious. telling that is at It not of all is sense jury that such such and is a fact and such is is and what not. think such not a fact or what We assignment wholly this without merit. During of the two witnesses were the trial case ’ of Teamsters were members

called State who very Apparently hesitant Union. were witnesses given been state and the had information State they hearing contrary prior at what to ments Objection tempted say made then was on this trial. apparent amounted or what cross examination to the Attorney wit of own his District Greneral jury being excused. While done the ness. On judge of each in effect lectured out trial they for were there them that all told these witnesses nothing but truth and the whole truth tell the was to equivocation any of out not want he did truth, and any perjury were in there there was and if them perjury, statements punished etc. These going to be presence judge out of the made were the trial ques certainly in this. This error jury. can no There Sec. interestingly Am.Jur., in 53 discussed tion is paragraph with this statement: page ends 40. The is not of a witness any commitment event, the “In knowledge without the it is made prejudicial where intimidating the effect jury,- have does witness.” state- that the reading convinces us record of this Our time he judge at the these witnesses trial of the ments They not made before were warranted. them made jury judge the and later on when trial was not sure whether or not the statement to of the witnesses one had properly jury been made before the he instructed jury they what not to consider he had said to any regard this witness or it for at all. This, reason if it had been a misadventure at time that was made (if jury) certainly it had been made before the not prejudicial error and under the Harmless Error Statute (section T.G.A.), 27-117, would not erroneous.

Reading this record all this one finds after skir- mish counsel for between the State and counsel for the plaintiffs argument trying error, to the Court over to elicit certain from evidence the owner of car (the Smith had driven from Nashville Knoxville wit- apparently trying every way ness possible), it in evade up stipulation ended that he did own car, its bought that it color, time and its number, license etc. assigned judge

It is as error that the trial erred refusing failing jury or in to instruct the on lesser in charged by cluded offenses embraced in the offense prob indictment. We think that it would have been error ably jury if had instructed the on a lesser included certainly offense under this and that there is no error to not do so. A lesser included offense would have been charges barred hap Section 40-205, T.C.A., pened years than 2 more before the indictment was they If found. had been convicted on a lesser included discharged. offense would be entitled to be Wilson Hickey State, v. 516; State, Tenn. v. 131 Tenn. 112, 174 S.W. 269. jury regarding was instructed such an offense jury

the Fifth Count of the indictment, and did fix punishment jail in error’s at a fine and sentence as it could 'under have done instructions given hy the court on Fifth if the Count been They plaintiffs so inclined. for the found in error under they the Fifth Count in which instructed on the were reading lesser offense. Furthermore from this record absolutely the overwhelming preponder- evidence is guilt greater in ates favor of the of the offenses. argument Attorney

The full District the Gen eral as was made to the is contained in one small among plaintiffs volume of this record. volumes complain portions in argument. They error as to of this assign Attorney it as error wherein District General argued they plaintiffs guilty if that in found error not branding and turned them that loose would be a against woman witness who testified one of them as a exactly This whore. is not error because that is what the plaintiffs testimony attempted in error to do their certainly ample proof about this is woman. There in the plaintiffs what record, said themselves, error argued by this entitled to be and answered the District Attorney Complaint along General. is also made this Attorney argued line that the District in effect General plaintiffs argument and contended in his that the in error argument gangsters. were This criminals was war nothing for evidence, ranted if more was warrant voluntary plaintiff made ed under the statement period in error that he been so Smith branded over Arguments prejudicial or the kind of time. were intemporate from facts but warranted and cir certainly of the case. such is cumstances When true Attorney argu- for District cannot be censnred General ing tbe facts as saw them. be spent, uninterruptedly, having

After more than one thinking reading week tbe authorities record, pro are must, it and con times as one we about between a fair convinced in error had trial clearly shows the evidence adduced herein their guilt. is can find no error the record and We expressed judgment below must reasons herein affirmed. apology is that we write such a It with have had opinion long all contentions that cover the serious Judgement large affirmed. record warrants. Petition to Rehear On dignified plaintiffs in error have for the filed Counsel respectful petition to rehear in this cause. The basis and petition purely re-argument what was is of this argued forcefully ably at Bar of this and heretofore Primarily originally filed. and in briefs Court jurors upon petition fact that some of is based petition (quoting again in to rehear the evidence jurors quoted original which in of the certain opportunity brief) read certain news- an did reports published during paper the trial of the cause. questions gave petition all raised in this this and We study, thought, pre- very before careful serious opinion. original paring It is true we not did take our argued specific as up items because in our of these each by judgment were all covered what we said in our pages [327 specifically opinion 16 24 from 319 S.W.2d any things 323]. did not overlook of these We

545 clearly questions convinced raised were not prejudicial plaintiffs to the in error for the reasons therein stated. support

Some additional anthorities in of these conten- particular tions are now one in cited, Marshall v Unit- States, ed 360 310, U.S. 3 79 S.Ct. 1250. 1171, L.Ed.2d We opinion releasing opin- had read the advance before our opinion ion did but mention in the because the opinion prior prepared receipt had been to our of this opinion. opinion recognizes This matters such presented judge very large here trial has a discretion ruling prejudice resulting on the issue of from the jurors reading by concerning of news articles the trial. States, The Court cites Holt v. 218 251, United U.S. 245, authority recog- 2, 54 L.Ed. S.Ct. as its for 1021, by prior prep- nition. Holt case was us read our original opinion. aration of the We for the reasons expressed opinion our held that there was no abuse judge discretion of the trial in his action herein and fur- proof ther held reason on the offered motion for prejudice, judgment, trial new that there no in our in error reason of facts. The authority really nothing Marshall case is more than says: Supreme that the Court of United States supervisory power of our “In the exercise to for apply proper standards mulate and for enforcement of (Bruno law the federal courts the criminal v. United 198, 60 S.Ct. L.Ed. States, 257; U.S. Mc 318 States, 332, U.S. Nabb v. United S.Ct. 608, 819) granted.” think a new trial L.Ed. we should 1173.] [360 U.S. 79 S.Ct. power supervisory recognizes a

This Court likewise justice fairness and over in the interest of trial courts exercising this In tried. are there defendants who jurisdiction thought record under this concluded we there no error herein. firmly is of there no violation are convinced We guaranteed right process due of law the United Amendment Constitution Fourteenth of Tennessee or Article 1 of the Constitution States defendants. to these petition to rehear herein stated,

For reasons accordingly denied. notes it had error if been this error because not think doWe certainly harm- have would been first in the instance less allowing and this was cured later counsel to years examine these notes and look at them. After two anyone time it they they was natural for when know are going put to be on the witness stand to sit down think jot they about got the matter and down notes before on they the witness stand so that could their recol- refresh pretty lection from It is them. hard even those that experienced things are sit on stand and recall happened years two or three if before had not had opportunity jot an to think about them and it down. argument, assignment Another in this of error testimony as to the this witness, that the trial judge weight on commented of the evidence. The regard really situation does amount to a com not guaranty ment on evidence under our constitutional happened: of such. Here is what witness was This explain jury asked to to the what meant the term “independent contractors”. direct He testified on freight examination that these truck bodies contained hauling; that he was that these bodies had names (B Lines) & S but them, that as far as actual operation, pull the cab is, and the motor that these independent trucks was let out to It was contractors. independent pulling who contractors the truck shooting happened. at the time When this ob jected attempted explain jury to he to the what he by independent meant judge, contractors. The trial objection effect, sustained stated that it was particularly important for the know definition

Case Details

Case Name: Smith v. State

Court Name: Tennessee Supreme Court

Date Published: Jul 27, 1959

Citation: 327 S.W.2d 308

Court Abbreviation: Tenn.