Distinguished
Distinguished by State v. Ricker, 1980 Tenn. Crim. App. LEXIS 338 (1980)
The Hughes case is distinguishable from the case at hand in that there is a sharp conflict in the evidence on the self-defense issue and the other facts.
The opinion
WALKER, Presiding Judge
(Dissenting).
I must dissent.
*613 The State’s proof shows that Hamilton, the deceased, was fleeing from the defendant; that the defendant, knife in hand, pursued him 24 or 25 feet and stabbed or cut him five times with a table knife filed to a point. One of these wounds was in the center of the back. The victim’s only words were, “What in the world is wrong, boy?” The conduct of the parties when seen by the guard was not consistent with the defendant’s claim that the deceased made such a sudden, fierce and deadly attack on him that he was forced to kill the deceased.
The defendant claimed that he was walking along with his school books in his hand; that the deceased suddenly hit him in the back of the head and knocked him to the ground; that Hamilton hit him again three or four times, ripped his shirt, threatened to kill him, and generally made a vicious and unprovoked assault on him. Through all of this vicious and deadly attack, the defendant says he did not drop his school books and was still carrying them under his arm. He does not claim that Hamilton had any weapon although some of his witnesses say they saw one. The guard saw none.
I think it was within the province of the jury to settle this issue. The jury was in a position to weigh all of the evidence and the credibility of the witnesses. The jury decided this issue in favor of the State’s theory. I do not think this court should say that the evidence preponderates against that finding. Arterburn v. State, 216 Tenn. 240 , 391 S.W.2d 648 ; May v. State, 220 Tenn. 541 , 420 S.W.2d 647 . It would have sustained a higher degree of homicide.
I would affirm the conviction.