107 Tenn. 381 | Tenn. | 1901
Colquit was convicted of murder in the second degree for killing one Fred. Hunt, colored, and sentenced to the penitentiary for- twenty years. He has appealed in error.
The first assignment is that the Court erred in permitting the State to introduce in evidence the verdict of the Coroner’s jury on the inquisition of this homicide. The verdict was that Colquit killed Hunt, and “said killing was, in our opinion, a coldblooded murder.” Counsel for the prisoner excepted
The question of the admissibility of such evidence has never been decided by this Court, so far as we are informed, and yet it frequently arises in the lower Courts. We have found, in our examination of the question, precedents for its introduction in civil cases, but no criminal case in which it was admitted. The case of United States Life Insurance Co. v. Killgast, 6 Law. Rep. Annotated, 65, was an action on a policy of life insurance. The defendant company relied on a clause of the policy which provided that if, within three years from the date of the policy, the insured should die by an.y act of self-destruction whatever, the policy should become null and void. It was shown that the insured died by an act of self-destruction — to wit, by shooting himself with a pistol. On the trial, the defendant company offered in evidence a certified copy of the Coroner’s inquest, which showed on its face that the insured came to his death by a pistol shot, fired by the hand of deceased,- while laboring under a fit of temporary insanity. The Court below excluded this evidence. The Supreme Court of Illinois held, on appeal, viz.: “We are satisfied, both upon principle and authority, that the Coroner’s in
The Court cited 1 Greenleaf on Evidence, Sec. 556; 2 Phill. on Ev. (5th Am. Ed.), 262; 2 Taylor on Ev. (6th Ed.), See. 1437; Starkie on Ev., 1309. In the latter authority it is stated that in Sergesol v. Seedy, 2 Atk., 412, Lord Hardwick said that inquisitions of lunacy and inquisitions post mortem -were always admissible, though not conclusive. In the case of Burridge v. Earl of Sussex, 2 Ld. Raym, 1292, an inquisition post mortem, setting out the tenor of a deed, was held to be evidence of the deed. But no case has been cited, nor have we been able, in our examinations of this question, to find a case where such evidence was held admissible in a criminal case. It was held in State v. Cecil Co., 54 Md., 426, presumably a criminal case, that the inquisition of a coroner’s jury is inadmissible to prove that County Commissioners were negligent in not providing a ‘‘safe and suitable crossing over a creek while they were repairing a bridge over same.”
It was said by this Court, in Galloway v. Shelby
It is not a part of the prosecution, and we do not see upon what ground it is admissible. Such an inquisition is generally conducted in the absence of the accused, with no opportunity to offer testimony or cross-examine witnesses, and is a proceeding wholly ex parte. The verdict of the Coroner’s jury in this case that “this was a cold-blooded murder,” was the expression of an opinion touching the very issue submitted to the determination of the jury, and such evidence was manifestly incompetent.
But, as facetiously remarked by an eminent member of the bar, the prisoner has no vested rights in the mistakes of the trial Judge, and, if the illegal evidence is withdrawn and the jury admonished to give it no consideration, the trial Court has done all that is practicable to correct the error. In this case the trial Judge, after having become satisfied that the evidence was incompetent and illegal, withdrew it from the jury and instructed them not to consider it. He repeated that admonition in his charge, and the jury thoroughly understood that the Coroner’s inquest was not before them. It has been repeatedly held by this- Court that, if incompetent proof go to the jury, and the Court afterwards definitely withdraw it, with proper instructions, it is
The second assignment is that the Court erred in refusing to admit the declarations of the prisoner made prior to the homicide. The defendant offered to prove that, the day before the shooting, he went to the witness and stated that he had had trouble with the deceased, and that deceased had threatened him; and defendant asked witness’ advice. Witness advised him “not to carry a pistol or anything of that sort, but, if defendant thought it was necessary to carry one, to go down to the Chief of Police and get permission to carry one. ’ ’ Defendant offered, in this connection, to prove that, on the next day succeeding the conversation just .stated, and on the same day of the homicide, defendant went to the police station and called for the Chief of Police, but the latter was absent. Defendant stated to witness that a man had been hanging around his house and making threats. Witness said to him that a man had a right to defend his own house. The Court excluded the statements, upon the ground that they were self-serving declarations and were not part of the res gestee.
We think the action of the Court was correct. “When the nature of a particular act is questioned, a contemporary declaration by the party who does the act is evidence to explain it.” 1 Starkie on Ev., 48. This principle was illustrated in Evans v. Jones, 8 Yer., 463, where the question for the jury to decide
The third assignment is that the Court erred in excluding proof offered by defendant to the effect that shortly before the homicide, on two different occasions, a man came to defendant’s house about or
The fourth assignment is the Court erred in admitting, over defendant’s objections, statement of witness Hollister that he told Divine that he, Hol-lister, ‘‘would not kill a dog like, he, defendant, killed that man. ’ ’
It is stated that the Court permitted this statement of the witness, on his re-examination, to go to the jury, on the ground that defendant’s attorney had asked the witness, on cross-examination, as to his conversation with Divine. The only question asked witness,' by defendant’s attorney in regard to his .conversation with Divine, was if he did not state to Divine that only one man was on the sidewalk at the time the shooting began. The witness replied, “I do not remember telling him there was only one. I know I saw two.” This was all that was asked by defendant’s counsel and the whole of the witness’s reply on that subject. The question was asked on cross-examination. The Attorney - general had asked the witness, on his original examination, if he was sure there were two men together when defendant fired his first shot, and the witness stated, “Tes, I am sure of that.” Now, on cross-exami
Onfjredirect examination the Attorney-general- stated to witness, ‘ ‘ They asked you about a conversation •with Mr. Divine; where was that, conversation?” Witness replied, at 228 Vance street. The witness then proceeded to state the details of the conversation, and concluded by stating that he told Mr. Divine, “I would not kill a dog like defendant killed that man” (deceased). Defendant’s counsel objected to the statement of the' witness. The Court remarked, “You asked about the conversation. You can’t take out the .part that suits you, and reject the other part.” Defendant’s counsel insisted that the opinion of the witness was not responsive to any question asked by him. The Court replied, “The whole conversation is responsive to it. You cannot take a part of it and reject the other.”
We think this evidence was highly prejudicial to the .defendant, and incompetent. It was the expression of an opinion of an eye-witness to the killing, of its cruelty and atrocity. No conversation had been called for by defendant’s counsel on cross-examination. Counsel simply asked the witness if he
We think that case applicable in the present instance, and that the opinion of the witness was incompetent, nor admissible under the claim that defendant’s counsel had called for a conversation.
For these reasons, the judgment is reversed and the cause remanded for a new trial.