# Houston v. State > Tennessee Supreme Court · January 7, 1980 · 593 S.W.2d 267 URL: https://www.frixlaw.com/law-library/cases/9673128 ## Case - **Full name:** Richard HOUSTON, Appellant, v. STATE of Tennessee, Appellee - **Court:** Tennessee Supreme Court - **Decided:** January 7, 1980 - **Citations:** 593 S.W.2d 267; 1980 Tenn. LEXIS 392 - **Precedential status:** Published - **Opinion:** Dissent by Henry - **Judges:** Cooper, Fones, Harbison, Byers, Henry - **Cited by:** 91 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by State v. Brown, 1992 Tenn. LEXIS 401 (1992). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673128 ## How later opinions describe it (automated extraction) - affirming death sentence based on (i)(5), (6) & (7) where victim shot three times ## Opinion text HENRY, Justice, dissenting. I respectfully dissent from the action of the Court in affirming the conviction of first degree murder and the sentence of death by electrocution.. I. We deal with a case of murder in the second degree — only that and nothing more. The killing in this case was accomplished by the use of a deadly weapon, thereby raising a presumption of the existence of malice sufficient to support a conviction of second degree murder. Thomas v. State, 210 Tenn. 297 , 358 S.W.2d 315 (1962). This presumption thrusts upon the defendant the burden of reducing the degree of homicide and upon the State the burden of establishing that the killing was murder in the first degree. Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972). Neither has carried this burden. This murder was committed in a small, unlighted service station rest room. There were no eyewitnesses and the only proof comes from the confession of the defendant: I stopped to make a phone call, we stopped right behind the Gulf Service Station. I walked down to use the phone to call my cousin. When I went to the service station the attendant was going into the bathroom. I guess to check something. I started towards him to ask if they had a telephone. I did ask him. I noticed a green wallet sticking out of his right pocket, I just decided to take it. I had no place to live in the last week, my old lady, my wife and I split up. When I approached him, when I stepped towards him, I pulled the gun out of my waist band, he saw me and grabbed the pistol barrel and we tassled for a good three-five (3-5) minutes, I told him to give me the money, he said no, he had the pistol pointed towards me, and was trying to pull the trigger by putting his thumb against my forefinger. He said this damn thing won’t fire will it. I said, man just give me the money, he said no way, the other man will be around here in a few minutes. I said man just let me go out of the bathroom, just let me out of the bathroom, just let me get away. Both of us were still wrestling for the pistol, the bathroom door shut and it was dark, and we were just wrestling, I was trying to pull the pistol out of his hand, and the pistol started going off, it started *279 going off. It fired about 2, 3, 4 times. When I opened the door to go out I saw the billfold and I picked it up and ran back to the car. There is no occasion for the application of the general law that the verdict of a jury, approved by the Trial Judge, accredits the testimony of the witness for the State and resolves all conflicts in favor of the theory of the State. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). There were no conflicts. There was no other proof. The defendant exercised his constitutional right to remain silent and did not testify. The confession was read to the jury by a police officer. It tells the whole story. The use of a deadly weapon makes it second degree murder. The State offered no proof to raise it to murder 1; the defense offered none to reduce it to a lower degree of homicide. Nor may it be raised to first degree murder by the application of the statute governing felony murder. The defendant was indicated on three counts, viz.: felony murder, common law murder and armed robbery. The State was apparently apprehensive about the sufficiency of the proof on either murder count and felt it necessary to obtain a conviction of armed robbery. It noted, in open court, that this Court had held that a person could not be convicted of both the felony murder and the underlying felony and, therefore, moved to enter a nolle prosequi as to felony murder, leaving the State free to seek convictions both for common law murder and armed robbery. There is no explanation for this trial tactic since a finding of armed robbery added nothing to a capital case unless the State’s assessment of the sufficiency of its evidence led to the belief that the trial would not result in a verdict inflicting the death penalty. The result of this action on the part of the State was that it took on the burden of premeditation in the face of a confession— the sole evidence — which negated it. Thus the State lost the benefit of the rule that the indispensable element of premeditation is supplied by a murder occurring during the perpetration of a felony. Premeditation is the distinguishing and essential characteristic of murder in the first degree, which involves a previously formed design or actual intention to kill. Clarke v. State, 218 Tenn. 259 , 402 S.W.2d 863 (1966). Premeditation may, of course, be inferred from the circumstances of the killing; however, here the proof of the circumstances is solely in the confession which negates premeditation. And it is true that repeated blows, shots or other acts of violence are sufficient evidence of premeditation. McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223 (1972). Here, there were three shots, but accordingly to the only proof, they were fired as a result of and during the course of wrestling between the victim and defendant in close quarters and in a dark room when defendant was attempting to disengage himself. We may speculate, we may guess, we may conjecture to the contrary, but this is the proof, the whole proof and we have nothing but the proof. We have no premeditation. Its existence may only be declared by this Court. Premeditation is “a settled purpose and fixed design.” Swan v. State, 23 Tenn. 136 (1843). More than a century ago, Justice Nathan Green, speaking for the Court in Dale v. State, 18 Tenn. 551 (1837), put the matter in eloquent phraseology: [T]he killing must be done wilfully, that is, of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design must be formed to kill, before the act, by which the death is produced, is performed. In other words, “proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the concurring will, deliberation, and premeditation of the party accused sought” (Emphasis supplied). 18 Tenn. at 552 . This case fails the test. It is fundamental that there must be a constitutionally adequate evidentiary basis *280 to sustain any criminal conviction. “The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt.” jackson v. Virginia, 443 U.S. 307, 309 , 99 S.Ct. 2781, 2784 , 61 L.Ed.2d 560 (1979) (quoting from In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970)). Under the holdings of Winship and Jackson, we must analyze the record in a criminal appeal to insure that the evidence supports a conviction beyond a reasonable doubt. Any lesser standard will not protect against a violation of the Due Process Clause of the Fourteenth Amendment or from the mandate of our own constitution. Moreover, Rule 13(e), Tenn.R.App.P., specifically provides that “[findings of guilt in criminal actions . . . shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” This language is plain; its mandate is clear. I cannot say on this record that this defendant was guilty of murder in the first dégree beyond a reasonable doubt. To do so I would have to base my decision on conjecture, speculation and suspicion. This, no court may do, because we are mandated to apply a standard requiring proof beyond a reasonable doubt. United States v. Carter, 173 U.S.App.D.C. 54 , 522 F.2d 666 (D.C.Cir.1975). Absent a factual or evidentiary basis, we may not infer the premeditation necessary to support this conviction. An inference of guilt may not be based upon conjecture or surmise. We deal with the life of a human being. I cringe at the thought of sending this defendant to the electric chair on the basis of a conjecture that his uncontradicted version of the fatal events is false. I find it difficult in a death case to give full faith and credit to his admission that he killed and robbed the victim and simultaneously to reject out-of-hand his explanation of all details favorable to him. I remind again that we do not deal with a felony murder prosecution. I would reduce this conviction to murder in the second degree and the sentence to life imprisonment and direct that the armed robbery sentence be served consecutively. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673128. Public record. Not legal advice.