123 Tenn. 37 | Tenn. | 1909
delivered the opinion of the Court.
Duncan B. Cooper and Robin J. Cooper were indicted in the criminal court of Davidson county, Tenn., charged with murder in the first degree, committed November 9, 1908, upon the body of Edward W. Carmack, and later after a trial lasting some two months, were by a jury of that county found guilty of murder in the second degree, and their punishment fixed at confinement in the penitentiary for a period of twenty years, and, after their rule for a new trial was discharged, judgment was entered against them in accordance with the verdict.
John D. Sharp was also indicted with plaintiffs in error, but was acquitted by the jury.
The record and briefs filed for plaintiffs in error and the State are voluminous, the argument at the bar. was most elaborate and marked with much ability and the case has challenged and had the most careful and deliberate consideration of the court.
Duncan B. Cooper and Robin J. Cooper are father and son. Duncan Bi. Cooper for some years past has been quite prominent in political affairs in Tennessee.
Robin J. Cooper is a young man and a lawyer practicing in the courts of Davidson county.
Edward W. Carmack was late a senator of the United States, and was also prominent and active in politics, and a candidate in several political contests that have occurred in the State within the past few years, and at the time of his death, November 9, 1908, was editor of the “Nashville Tennessean/-’ a daily paper published in the city of Nashville.
He was a candidate to succeed himself in a general primary held for the nomination of a United States senator in 1906, and was defeated. He was again a candidate in a primary held to nominate candidate for governor in 1908, and was defeated by Gov. M. R. Patterson.
Robin J. Cooper, Avhile sharing in the hostility of his father .to Senator Carmack, came into this unfortunate tragedy, resulting in »the death of the latter, almost altogether through his father.
There is no question but that Edward W. Carmack was shot to death in an encounter with the Coopers on November 9, 1908. The tragedy occurred about four o’clock in the afternoon, upon Seventh avenue, north, a street in the city of Nashville, near and south of where Union street intersects it.
The contention of plaintiffs in error is that the homicide was committed in self-defense, or, more- correctly stated, by Robin Cooper, in defense of his father and himself.
The first assignment of error is:
"The verdict is not warranted by the evidence
This assignment, in form, is not good. The settled and uniform practice of this court and the law of this state is that in civil cases, tried by jury, the verdict will not be disturbed upon the facts, in proceedings in error, where there is any material evidence to sustain it.
The practice and law in criminal cases, equally .well established, is that a verdict of guilty, approved by the trial judge, will not be disturbed upon the facts by
In the cáse of Leake v. State, 10 Humph., 145, decided by this court in 1849, Judge Turley, speaking for the court, said:
“In holding ourselves not to be bound by the verdict of a jury in criminal proceedings, unless, in our judgment, the proof upon which it rests clearly preponderates in favor of its truth, we do not wish to be considered as meaning that it is wholly ineffectual and inoperative, and that we are left free to consider of the truth of the charge, upon the proof, in the same manner and to the same extent with it, as without it — very far from it. The jurors are the legitimate tryers of questions of fact in criminal as well as civil cases, and their verdict must always have great weight with a revising court. But it is not conclusive except in cases of acquittal; and we are not of those who look upon it as a thing too sacred to be touched, and, therefore, always to be approached with fear and trembling. We have seen too much of the practical uncertainty of such things to have any such feeling in regard to it, and, therefore, readily disregard it, if, in our judgment, we think it should be disregarded. But still, it being against the prisoner, the presumption of guilt is thereby fixed upon him; previously, the presumption was in favor of his innocence, and this presumption of guilt, which the verdict has attached, must ■be removed before a new trial can be granted. Before the verdict, the accused is entitled to the benefit of all*58 reasonable doubts of bis guilt in bis favor. After .verdict he has lost this privilege; he cannot obtain a new trial by insisting that there is. a reasonable doubt of his guilt, but only by shewing that there is a reasonable ground in favor of his innocence; or, in other words, before verdict the testimony against him cannot be weighed with a view of its preponderancy. It must be of a character to establish his guilt to a moral certainty; but after this proof has been submitted to a jury, and analyzed by their minds, and a verdict of guilty returned, then, in order to obtain a new trial, he must show that the weight of the evidence is in favor of his innocence. This much a verdict of guilty, in criminal cases, produces in every case, and it is much in its operation upon the court in relation to granting new trials. But for the verdict, the court, in reviewing the proof, would have to be governed by the common law principle, that the accused is to have the benefit of all rational doubts as to his guilt, and, therefore, could not weigh the evidence. But upon motion for a new trial the testimony is to be weighed, and, unless it preponderates in favor of his innocence, a new trial will be refused.” .
In the case of Robertson v. State, 4 Lea, 427, that eminent jurist, Judge McFarland, said:
“My conclusion upon the testimony is that it does not preponderate against the verdict, and, while there may be doubt as to the defendant’s guilt, it is settled that the court does not reverse upon a mere doubt, although a jury might have entertained a doubt, their verdict having negatived the doubt.”
“The yerdict of the jury in a case of felony raises a presumption of guilt against the prisoner, and we must see that the yerdict is erroneous, before we can reverse on the facts.”
Another rule to he applied in connection with this, and really a part of it, is that a yerdict is entitled to great weight in considering the credibility of the witnesses examined, and conflicts in their testimony.
In the case of Hardwick v. State, 6 Lea, 107, Judge Cooper said:
“The usual argument made in this court, that the evidence fails to sustain the yerdict, is not based so much upon the absence of sufficient testimony as upon supposed contradictions in the testimony of the witnesses, and especially the principal witness, which tends to discredit them. These discrepancies were pointed out by defendant’s counsel, and discussed with great skill and ingenuity. But, after all, the variance of the samé witness, as well as of the different witnesses between each other, are precisely such as always occur in such narratives, and tend rather to strengthen than to discredit the witness, for they show that there was no collusion to make up the same tale. They were,^ moreover, such as fell within the peculiar province of the jury to consider, and they have shown by their yerdict that they did not think them of sufficient importance to affect the result. The verdict is, in our opinion, fully sustained by the evidence.”
“But it is not to be understood by what the court say in the case of Dains v. State, 2 Humph., 439, that the verdict of a jury in a criminal case weighs nothing with this court, and that a new trial will be granted if upon the evidence certified in the bill of exceptions we are not convinced beyond a ‘reasonable doubt of the guilt of the party. On the contrary, the jury are the exclusive judges of the credit of the witnesses, and in all cases much must occur before the court and jury, properly calculated to act upon their minds, which cannot be transferred to paper. A verdict, therefore, in all cases, must have great weight with this court.”
The plaintiffs in error, as also appears from these authorities, have in this court no longer thrown about them the presumption of innocence; but, on the contrary, the verdict of the jury, approved by the trial judge, raises a presumption of guilt, which they must, upon the record, overcome to secure a reversal on the' facts.
The assignment of error, therefore, to entitle plaintiffs in error to a review of the facts of the case in this court, should have been that, considering the entire record, the evidence preponderates against the verdict ,pf guilty, and in favor of their innocence.
Considering the assignment as thus framed, we will proceed to examine the facts. In doing this, we will go into no detailed statement or argument as to the credibility of witnesses, slight discrepancies, and conflicts in testimony; all these questions having been settled by the verdict of the jury. It must appear to all
The salient facts leading up to the fatal meeting on Seventh avenue, where the homicide was committed, as to which there is no serious controversy in the record, unless it be as to some things occurring in Mr. J. 0. Bradford’s office, as to which the version of the plaintiffs in error is here giveii, are these:
Col. Duncan B. Cooper and Senator Edward W. Car-mack were on very unfriendly terms, -and had been for some mohths previous to the death of Senator Carmack. The latter had made humorous and sarcastic allusions to the former in his public speeches in the recent gubernatorial primary, and in the columns of -the Tennessean, some of them very cutting and approaching bitterness. '
’ On Sunday, November 8, 1908,. the day preceding the i homicide, there appeared in the editorial- columns of the ■ Tennessean an article, parts of which referred to Dun-' can B. Cooper in these words :
“ACROSS THE MUDDY CHASM.'
•'“We trust there will be no unseemly ribaldry- on the-part of the base and vulgar concerning the happy re*62 union of long-sundered hearts which was accomplished in the joyous reconciliation of Bis Excellency, Hon. M. E. Patterson, and His Ex-Excellency, Hon. John, Isaac Cox. All honor to that noble spirit, Maj. Duncan Brown Cooper, who wrought this happy union of congenial and confluxible spirits, separated by evil fates, though horn for each other. All honor to Maj. Dune, and may the blessing of the Peacemaker be upon him! May he be heir to all,the beautitudes, and especially to the blessings reserved for those who do hunger and thirst after righteousness: * * *
“But no doubt the main thing was that Governor Cox agreed to join himself with Ban Murray, Dune Cooper and Sparrel Hill, and aid them in their battle for the holy cause of Local Self-Government.”
This seems to have further inflamed, the hostility of Col. Cooper towards Senator Carmack, and upon the evening of that day, after he had an interview with Mr. E. B. Craig, a friend of Senator Carmack, about some business matters, at the Tulane Hotel in Nashville, he brought up the subject of his relations with Mr. Car-mack, and denounced him with great violence,, using opprobrious epithets, and said, according to Mr. Craig, that if his name appeared again in the Tennessean that either he or Mr. Carmack must die; or, according to Col. Cooper, if his name appeared again in the Tennessean, “the town would not be big enough to hold them both.” It is immaterial which of these statements is correct, as they both meant the same thing, and were so
Col. Cooper also in that conversation said that be bad a note prepared to send to Mr. Carmack “which could not be misunderstood.”
. Mr. Craig offered bis services to adjust tbe matter be-tween Col. Cooper and Mr. Crmack, and, with tbe consent of tbe former, went to tbe latter and stated to bim tbe conversation that be bad bad, tbe threat that bad been made, and informed bim of tbe note that bad been prepared, and 'Col. Cooper’s intense hostility towards him. Mr. Carmack refused to agree to cease bis references to Col. Cooper, and Mr. Craig returned to tbe latter and told bim tbe result of his mission. . Thereupon, Col. Cooper said, “Then, by God, this note goes.” Mr. Craig again saw Mr. Carmack that night, and informed bim of ■the anger with which Col. Cooper bad received bis refusal not to again use his name in the Tennessean.
Col. Cooper that same night borrowed a pistol, which be kept and bad at tbe time of tbe fatal encounter, evidently preparing himself for tbe execution of tbe threat be bad made in case bis name should appear again in tbe Tennessean.
Senator Carmack understood tbe language of Col. Cooper, communicated by Mr. Craig, to be a deadly threat against bis life, and likewise borrowed a pistol that night, which be bad when be met tbe Coopers upon Seventh avenue and was killed.
Col. Cooper says that what he meant by stating that tbe town would not be big enough to bold bim and Mr.
‘ The next morning an editorial appeared in the Ten-sessean-in these words:
“THE DIPLOMAT OP THE ZWEIBUND.
“To Major Duncan Brown Cooper, who wrought the great coalition; who achieved the harmonious confluence of incompatible elements; who welded the pewter handle to the wooden spoon; who grafted the dead bough to the living tree and made it to bloom, and burgeon and bend with golden fruit; who made the playmates of the' lamb and the leopard and boon companions of the spider and the fly; who made soda and vinegar to dwell placidly in the same bottle, and who taught oil and water how they might agree — to Major Duncan Brown Cooper, the great diplomat of the political Zweibund,' be all honor and glory forever!” '
Col. Cooper read this editorial, and about 9 o’clock a. m. went to the law offices of Mr. J. C. Bradford and there met and conferred with his son, Robin J. Cooper, who occupied one of these offices. He told him what had occurred between Mr. Craig, Senator Carmack, and himself the night before, and showed great indignation and anger. Robin Cooper expressed fears of trouble between his father and Senator Carmack, and suggested that the matter be adjusted through mutual friends.- -Col. Cooper said in substance that Senator
Col. Cooper, after leaving Mr. Bradford’s offices, went out to inspect a horse, and while passing Mrs. Burch’s, about 11 o’clock, was called by a servant, and went in the house, where he had a conversation with his daughter in relation to his trouble with Senator Carmack, when he must have repeated his threat, as she said, “He will kill you, papa,” and Col. Cooper replied, “He is as likely to get killed as I am,” and “Do you expect me to lay down my manhood?” He returned to the Maxwell House about 12 o’clock. In the meantime, Gov. Patterson, after being communicated with by Robin Cooper and Mrs. Burch in regard to 'Col. Cooper’s state of mind to
Col. Cooper in answer to the question:
“Q. In reply to the suggestion of Mr. Bradford and his expression of confidence that he could satisfactorily adjust matters, what did you agree to do?”
—answered:
“A. I agreed to meet him at the office at 3 o’clock to have a report of what had occurred.”
“Q. Of his efforts to settle or adjust matters?”
“A. Yes, sir.”
Mr. Bradford sought Col. A. M. Shook as a mediator in the matter, but found that he was out of the city. He then applied to Mr. J. J. Vertrees to act in that capacity, but he declined to do so, saying that he did not think the editorials to which we have referred justified the proposed action of Col. Cooper. When the hour of 3 o’clock arrived, Col. Cooper met Mr. Bradford and Gen. Tully Brown, whom Mr. Bradford had invited to be present at the office of the latter, and the trouble in question was discussed for some time, and Col. Cooper agreed not to
Gov. Patterson testifies that about á o’clock that afternoon he telephoned to Col. Cooper, at Mr. Bradford’s office, in which he is corroborated by those in the office at the time, and requested him to come to the Executive Mansion, which is situated on Seventh avenue, east side, and north of Union street, to discuss some political matter. Col. Cooper then left the office to comply with this request. He was accompanied by Robin Cooper, who says he did so over the objection of his father, because he was apprehensive of a meeting with Senator Carmack, and that the latter might resent the threat that had been communicated to him by Mr. Craig. They were both armed with pistols. They proceeded up Union street toward Seventh avenue, and on the way met John D. Sharp, a friend of Col. Cooper and also of Governor Patterson, who, plaintiffs in error testify, went' with them upon the suggestion of, Col. Cooper that he go to the Mansion with him. The-three proceeded up Union street, on the south side, Robin and Mr. Sharp going in advance, and arriving at the corner of Seventh avenue and Union street before Col. Cooper, where they stopped until he came up with them.
What occurred here is of great importance, but before we state it, we must call attention to the movements of' Senator Carmack that day, and the circumstances attending his appearance upon the scene of the tragedy.
Between 11 and 12 o’clock, he was informed that Mrs. Burch had telephoned Dr. J. A. Witherspoon to find Dr. Lucius Burch, her husband, for her; that her father was very angry and armed, and intended to kill him (Car-mack) on sight.
About 4 oclock that evening, Senator Carmack left his office for the purpose of going to his room, which was in a residence on the west side of Seventh avenue, something more than a block north of Union street and beyond the Executive Mansion. Plaintiffs in error both testify that they did not know the location of his room, or that in going to and from it he passed along Seventh avenue, or that he intended or was expected to pass at or near the hour when they came upon him. When he left his office, he went into a drug store and drank a glass, of coca-cola, and then proceeded to the comer of Church street and Seventh avenue, where he stopped to assist a lady upon a car. Prom there he proceeded up Seventh avenue on the west side, towards his room, smoking a cigar, and having in his hand an evening paper. He was armed with the pistol he had borrowed the night before. When he reached a point about opposite the gate of the Shanklin residence, near where two telephone posts stood in the outer edge of the pavement, about six inches apart at the pavement,
Robin Cooper was shot in the shoulder, and another bullet passed through his clothing.
We will now state the testimony of the witness con-, cerning matters which are controverted.
In doing so, we will omit that part of what occurred in the office of Mr. Bradford in regard to which there is a conflict. The material determinative facts, after having ascertained the relation of the parties, are those transpiring on Seventh avenue, and we will go directly to them.
Mr. Carey Folk, witness for the State, passing on the north side of Union street, testifies that he saw the three men at the corner on the other side of the street, and .heard Robin Cooper say to his father, “Are you going up this way?” indicating by a motion of his head towards the Capitol, and Col. Cooper replied, “No, I will wait a while yet.”
Ool. Cooper testifies that about the time he reached the corner his son said to him, “Come ahead,” and he replied, “Wait a minute,” being a little tired from the walk; that they started across Union street, Robin Cooper grabbing him.by the arm and saying, “Hurry up;” that from this conduct he intuitively knew something was wrong, and turned and looked down the street, and saw Senator Carmack coming north, on the west side of the street, and he says: “The impulse formed at that moment that I should go and remove all this condition that was distressing my friends, and worrying them and my children, and I was going over and have a direct, plain talk with Carmack. He had known me well, and I had known him well, and I went there to have that talk with him, and protest against his continued attacks upon me, and see if it could not be stopped.” He says he pulled away from his son, and started across Seventh avenue, and proceeded towards Senator Car-maak, following two people just in advance of him.
Mrs. Eastman, a cultured and refined woman, who is not attacked in this record, gives this account of the meeting:
She says that she and a kinsman were walking very slowly south, on the west pavement of Seventh avenue, and just as she passed a little south of the Polk Plats lot she noticed Senator Carmack a short distance in front approaching her and going north; that he came towards her with a very pleasant look of recognition on
Mrs. Eastman further says that, as Senator Carmack drew the pistol out of his hip pocket he had hold of it by the barrel, “his thumb crumpled under the barrel,” and, just as the voice behind her said, “Get out from behind that woman,” she jumped to the gate, and Senator Car-mack, with his eyes still fixed on some one back of her, moved eastwardly toward the curb, and as she jumped into the gate from her position about the center of the pavement, and several feet north of the gate, the first
“I told him that he was brutal; that he was a murderer ; that he had taken advantage of my presence; that*74 lie hadn’t given this man a chance, not a single chance; that I would rather be the dead man in the gutter than to have been him” — to which Ool. Cooper made no reply, though he was near and looking straight at her.
Col. Cooper says that when he approached Senator Carmack, just as the latter was passing Mrs. Eastman, he addressed him, “Mr. Carmack,” and he (Carmack) threw his head up, and in an instant drew a pistol, and . jumped back behind Mrs. Eastman, and that he (Cooper) said: “It is damned cowardly to get behind a woman with a pistol in your hand.” He denies that he said, as he approached: “Well, here yon are all right; I have the drop on you now.”
He further says that, immediately upon Senator Car-mack’s moving backward and eastward toward the telephone poles, Robin Cooper passed between them to the inner side of the pavement, and the firing began; Mr. Carmack shooting the first two shots between the two poles. He says he did not draw his pistol until Mr. Carmack fired, and then he drew it to kill him if he had killed Robin, and that he had no opportunity to shoot, because Robin got between him and Mr. Carmack simultaneously with the drawing of the pistol by the latter, and that he did not shoot.
Robin Cooper testifies that his father did not address Mr. Carmack as stated by Mrs. Eastman, but simply said, ‘“Mr. Carmack,”, and that immediately the latter drew his pistol and moved toward the telephone poles; that he rushed between Mr. Carmack and his father to the inner side of the pavement, and rather below the
Miss Elizabeth Port, who was in the Polk Plats about ninety feet from the place of the tragedy, sitting by her window, and who was accustomed to the use of pistols, testified that there were five shots; “first, three came al-na ost at once, came very rapidly, then another, and between the last shot and the next to the last there was a little more space. I, of course, do not know how much.”
She was asked if the tone of the first three shots was the same or different, and answered:
“Sounded as the same shot, as almost one shot — ■ sounded from the same pistol as one shot.”
There is other testimony to the effect that there were fired, first, two shots, one after the other similar in sound, and then three of a different sound, fired in rapid succession, tending to support the Coopers in their contention that Mr. Carmack first fired two shots from his Smith & Wesson pistol, and then Robin Cooper fired three from his Colt’s automatic pistol.
Senator Carmack received three wounds in the encounter, two in the left side, one just below the left nipple, which ranged downAvard and to the right, one
John D. Sharp, who was tried with the plaintiffs in error, testified in the case, and the tendency of his testimony is to corroborate the Coopers; but it appears from the testimony of Miss Mary Skeffington, the state librarian, that he did not see the shooting. Evidently, when the Coopers started towards Mr. Carmack, Mr. Sharp started in the'other direction, and could not have seen what took place. Miss Skeffington, who was coming south on the same side of Seventh avenue and met Mr. Sharp a short distance from Union street, says that, while Mr. Sharp was in sight coming towards her, she heard the pistol shots at the -scene of the tragedy, and she asked him, “What is that?” That he replied, “That' is shooting.” She asked, “Who’s shooting?” He replied, “That is Col. Dune Cooper shooting Senator Car-mack.” Miss Skeffington is not in any way attacked. •Her testimony not only contradicts Mr. Sharp in his statement that he saw the tragedy, but it also shows that he knew of the hostility of Col. Cooper to Mr. Carmack, and believed, from what he had just seen and heard, that his object in crossing the street and intercepting Mr. Carmack was to attack him.
Mr. Sharp went almost immediately down to Church street, when he was asked by some gentlemen, among them Mr. Ed Thomas, clerk of the state senate, what he knew about the tragedy, and he replied that he knew nothing. He is also shown to have been very hostile to Mr. Carmack, and the political friend and ally of Col. Cooper. His testimony is also greatly shaken . and weakened by his cross-examination, in which he was unable to sustain himself. The jury .evidently discredited him and discarded his testimony, and their action cannot, under the rule, he disregarded by this court.
A witness by the name of Benning was also introduced by plaintiffs in error, who testified to some things connected with the meeting of the Coopers and Mr. Car-mack ; but he is so thoroughly discredited and impeached that no further notice will be taken of his testimony.
There is much in the record, in regard to the relative positions of the three combatants, the order in which the several shots were fired, and the exact location and range of the wounds received by Senator Carmack and Robin Cooper; but we do not consider it material to go into these matters.
Much has also been said in regard to who fired the first shot; but this is an inquiry which we heed not now pursue.
The contention of Col. Cooper and his son is that the former had relented from his announced determination •to kill Mr. Carmack, and approached him for the purpose of effecting a peaceable settlement of their differences, and that Mr. Carmack made a deadly assault upon them, or Robin Cooper, which justified them, or the latter, in taking his life, and thus that their plea of self-defense is sustained.
The jury trying the case found the facts as contended for by the State, and against the contention of plaintiffs in error, and the verdict was approved by the presiding judge.
The question now presented is whether this court, considering the entire record, can say that the evidence preponderates against the finding of the jury, and in favor of the theory of the plaintiffs in error.
Before we restate the facts which the State relies upon to, support its contention, we call attention to the three
Mrs. Eastman appears in this record to be a lady of cnltnre and refinement, sustains herself well under cross-examination, and there is no attempt whatever to attack or discredit her. She has no interest in the case, or motive to misstate or distort what she saw and heard.
On the other hand. Col. Cooper and Robin Cooper had the greatest interest that men could possibly have, and, while under the statute they are competent witnesses, the jury were properly, instructed that in considering the weight of their testimony, and the credit to be given to it, they should look to their interest in the case.
It is also a rule that issues of fact are not to be decided in accordance with the number of witnesses arrayed upon either side; but the credibility of the witnesses, their interest in the case, the rasonableness of their testimony, and its consistency with other facts, are ■all to be considred, and often more weight is to be given to one witness than to several testifying to the contrary.
We will briefly review the facts which are found to be established in this record.
Col. Duncan B. Cooper had for months cherished bitter-enmity towards Senator Carmack. The night before the tragedy he had expressed his enmity to Mr. E. B. Craig, the personal and political friend of .Senator Car-mack, denouncing the latter in severe terms, and stating that, if his (Cooper’s) name again appeared in the
Col. Cooper’s name was used - in a humorous editorial the next morning. The occasion for the execution of the deadly threat had happened. 'Col. Cooper at 91 o’clock in the morning told his son of what had occurred, and was so violent in his language toward Senator Carmack that his son became greatly alarmed about a meeting between his father and Mr. Carmack. He searched for him upon the streets, and armed himself to take part in the conflict he apprehended. He communicated with his sister to use had efforts to quiet their father, and called upon the governor of the State for his aid in the matter in such terms that that high official left his office and searched the city for Col. Cooper, in an effort to prevent the threatening homicide.
Mr. J. C. Bradford and the governor had an interview with Col. Cooper about 12 o’clock, and persuaded him to do nothing in the matter, while Mr. Bradford made efforts to secure the services of some one to adjust his differences with Mr. Carmack. A meeting was held at Mr. Bradford’s office at 3 o’clock, Gen. Brown being
Mrs. Eastman says the shooting began immediately. She further testifies of the manner of the meeting as follows :
“The first thing was the movement of Mr. Carmack,' and the expression of his face. He had had a perfect look of good fellowship and comradeship and pleasant anticipation of a talk up in that time. Then the face changed instantly, when the voice behind me broke in with, ‘I have the drop on you now.’ ”
When asked how long it was from the time she saw the pistol reversed in Mr. Carmack’s hand until the firing commenced, she answered:
“It wasn’t a second scarcely. . . . Mr. Carmack, as he stepped out this way, still had the pistol. The last sight I saw of it was while employed in his hand this way. I was the fraction of a second making this whirl into this gateway, and the shots followed each other immediately, and Mr. Carmack was dead.”
When asked on cross-examination:
“Who did you expect to do the fighting?” She answered :
“I expected the man who called him a coward in my rear, and told him to get from behind a woman, was going to do it on the one hand, and I presumed that Mr. Carmack was going to defend himself.”
“Because Mr. Carmack was standing a minute before oblivions of everything but myself, smiling at me, and I knew that he was not fighting, he wasn’t in a fighting mood, and the voice attracted his attention, and was in a way an assault.”
And then, again:
“I didn’t think of asking him not to shoot, because he was not the aggressor.”
These facts, .if not explained, or overcome by •other testimony, undoubtedly make out a case of murder. Every element of the crime is present. It is immaterial, under these facts, whether or not Mr. Carmack was the first to draw and fire his weapon. Col. Cooper was the wrongful aggressor. All his conduct unquestionably made a case which warranted Mr. Carmack in believing, and it is clear that he did believe, that his life was in danger and about to be taken, and he had the right finder the law to kill his adversary in his own defense. He was not, upon the sudden appearance of Col. Cooper, and his statement that he had the drop on him, after what had passed, required to wait for him to draw or fire his pistol; and, this being true, the Coopers had no right to act in self-defense, without first in good faith withdrawing from the deadly assault, real or apparent, which their conduct cleárly and unmistakably indicated they were making upon Mr. Carmack.
The testimony which plaintiffs in error rely upon to overturn the case made out by the State is that Ool. Cooper, in the office of Mr. Bradford, had agreed not to repeat the threat communicated through Mr. Cráig, in writing, in a milder form; that he was on Seventh avenue for another purpose, that of visiting the governor; and that upon seeing Mr. Carmack he was seized with a sudden impulse to go to him in person and effect a settlement of their difficulties (there is no denial of all the other facts relied upon by the State occurring before this time); that, when he came upon Mr. Carmack suddenly behind a lady, he did not say that he had the drop on him, or draw a weapon, but addressed him as “Mr. Car-mack;” and that when the latter drew his pistol and shrunk back, as he must have expected him to do upon such a sudden meeting, after what had occurred, he denounced him in substance as a damned coward; and the testimony of himself and Robin Cooper is that Mr. Car-mack fired two shots at' Robin Cooper before they drew their weapons, and thus that they acted alone in their proper and necessary self-defense.
Oa.n this testimony of Col. Cooper and Robin Cooper, vitally interested as they are, even if it be corroborated by that of Mr. Sharp, a prejudiced witness, that Col. Cooper suddenly, as he was crossing Union street, upon seeing Mr. Carmack, forgot his deadly hostility and, changed his determination to kill Mr. Carmack to a desire for- a friendly interview, turned from his course,
We are compelled to say that it cannot. The jury, the triers of the facts, and whose special province it was to pass upon the credibility of witnesses and to weigh their testimony and settle conflicts in the evidence, have said by the verdict of guilty that the State’s contention to the contrary is established by the evidence beyond a reasonable doubt.
Their story is inconsistent with the deadly purpose Ool. Cooper had announced the night before, which he announced that morning to his son and daughter, and to prevent him from carrying into execution some of the most prominent men in the State were called on to interfere. It is inconsistent with the fact that father and son .continued carrying arms, and that the latter was accompanying his father with the expectation of a difficulty, with the desire of the son that his father might not see Mr. Carmack approaching,- and with the statement of Mr. Sharp of what was occurring when he heard the shots behind him. It is inconsistent with the character of Col. Cooper, and contrary to the common experience of men in such affairs.
Mr. Cooper’s evidence on the trial conclusively shows that he intended to do that which would provoke a difficulty, which carries with it the necessary implication and conclusion that he would execute his deadly threat if opportunity was offered.
“The explanation was that I intended, and the purpose of my meeting Mr. Carmack on the street that evening was, to expostulate against this, and to tell him that I would expose his own private and personal life if this continued against me any further.”
He was asked:
“Q. Why did yon say that the town wasn’t big enough to hold yon both?”
And answered:
“A. It wouldn’t have been big enough after I published that, I thought.”
He was further cross-examined:
. “Q. So that you were going on a peaceful mission, for the purpose of saying to a man to whom you had sent this communication, with the fixed purpose to say to him, ‘if you don’t stop, I am going to expose your personal life.’ That was the peaceful mission you were on, wasn’t it?
“A. I was not on a peaceful mission. I was on a mission to stop this attack upon me.”
“Q. Peace wasn’t what you were after?
“A. I was not after war, either.”
Gan any one believe that he thought, after the threat that had been communicated, and the publication that had been made in the morning paper, that his sudden appearance before the "man he had threatened to kill, personally demanding that he cease the use of his name, and threatening to expose his personal and private character
Ool. Cooper evidently expected Mr. Carmack to be armed, and to have a difficulty with him when they met.
'In his testimony he said:
“Well, I have always believed that a man who kept á fighting tongue should keep a fighting body.”
And, further, when asked, if he had received a message from a gentleman that if he did a certain thing again the town would not be big enough to hold them both, to explain how he Avould have construed that language, he started to answer, and, when his counsel objected, said:
“I want to answer that so bad.”
The objection being overruled, he continued:
“I would either, have quit offensively using it, or I would have prepared myself to meet him.”
On the same point he said:
“I would 'prepare myself for any trouble that might come.”
Further inconsistencies are found in the extraordinary statement of Col. Cooper that he only drew his pistol to shoot Mr, Carmack in the event he killed his son, and that of Robin Cooper that, notwithstanding that he went down to help his father and saw Mr. Car-mack draw his pistol, he did not draw his own, or fire, until two shots had been fired at him. These statements
Again, Mr. Carmack had received notice that Col. Cooper would kill him on sight. There was no hostility between him and Robin, and it is most improbable, if Robin had not drawn a pistol, and was not endeavoring to shoot him, that he should bring his pistol to bear upon the son, with whom he had no quarrel, instead of upon the father, who, he had every reason to believe, was then seeking- to destroy his life, and whom alone he saw when he drew his weapon.
Col. Cooped states he had no weapon in his hand when he accosted Mr. Carmack. Mrs. Eastman says, when she first turned around, he had his hand extended; but she did not see a pistol, nor did she see the one Robin Cooper had. It is true, she saw Mr. Carmack draw his pistol; but then there had been no cause for excitement, as there was when she turned from the gate and looked at Col. Cooper. She also says the firing began immediately after Mr. 'Carmack drew his pistol. And, again, if Col. Cooper and his son did not have weapons in their hands, why was it that Mr. Carmack jumped backward, drew his own weapon, and moved toward the telephone posts, and began to fire his pistol? He had made no threats, and his whole conduct, from the time he left his office to the moment when Col. Cooper first accosted him, was one of peace and quietude; and it is not probable that he had it in his mind to make a deadly attack upon any one, while in the act of courteously lifting his hat to a lady. Clearly, there was some action upon the part of the
Was Col. Cooper’s manner of approach, and his denunciation of Mr. Carmack as a damned coward, indicative of a peaceful intention? Would he have not, if his story was true, instead of suddenly accosting Mr. Car-mack while he was addressing a lady, waited a few minutes, and, when he saw Mr. Carmack draw his weapon, would he not, instead of denouncing him, have said, “Mr. ■Carmack, I am not here for hostilities; I want to speak and reason with yon about our troubles?”
We think that it must be held that the contention of the State that Col. Cooper crossed the street and intercepted Mr. Carmack for the' purpose of making a deadly assault upon him is consistent with every other material fact in the case, and sustained by the preponderance of the evidence, and that Col. Cooper’s statement that he approached Senator Carmack merely for the purpose of demanding that the publications cease is inconsistent with such facts, and unsupported by the weight of the proof.
Col. Cooper evidently compassed the death of Mr. Car-mack that day. Soon after he reached Dr. Fort’s infirmary near the scene of the tragedy, and to which Robin Cooper was carried, he telephoned to his daughter, Mrs. Burch, saying: .
“Daughter, it is all over; Robin has killed Carmack.”
In other words, “The deed is done.”
The conduct of Col. Cooper, in the light of his enmity and threats against the life of Mr. Carmack, and his action and words at the time, constituted an overt act upon his part which authorized Mr. Carmack to believe that Col. Cooper was about to execute Ms threat, and that he was at his hands in danger of great bodily harm- or death, and would have justified him in slaying his adversaries.
In other words, Ool. Cooper’s conduct made him the wrongful aggressor, which justified the action of Mr. Carmack and deprived the former of his right of self-defense.
There can he no doubt, upon Col. Cooper’s own testimony, that Mr. Carmack, when he first saw Col. Cooper behind Mrs. Eastman with his hand outstretched, had reasonable grounds to believe, and did believe, himself in danger of death, and that his belief was confirmed when Col. Cooper denounced him as a damned cowardly scoundrel, and Robin Cooper suddenly appeared from the other side of him, evidently for the purpose of aiding his father.
“It might very well have appeared to Senator Car-mack, in view of the threat which he had been informed that Col. Cooper had made to kill him on sight, that he was being attacked, and was therefore warranted by the unexplained approach of the defendants in opening fire on Robin Cooper, and in a certain sense we concede that by crossing the street and going down to meet' him the defendants did provoke the difficulty; that is, that the killing would not have occurred at that time and place if the defendants had not so crossed the street.”
There is no doubt that, under the law, a case was presented which would have justified Mr. Carmack in killing Col. Cooper, conceding the contention of the latter, upon the belief that it was necessary to protect his life. He had reasonable and well-founded ground for such belief.
In Allsup’s Case, 5 Lea, 362, the doctrine of self-defense is stated in these words.: “The law has been long settled on this subject in our State, and is that if a party is in real or apparent danger of death or great bodily harm, or believes himself to be so, as evidenced by circumstances justifying that belief as the facts appear to him, and he in good faith, under such apprehension, kill his adversary, it is justifiable homicide.”
What is such an overt act as will authorize a party to slay his adversary in self-defense always depends upon the facts of the case on trial.
“An overt act, that will justify a defendant in assuming that his own life is then in danger, must depend upon the circumstances of each particular case.”
The court then proceeds to state some hypothetical cases, one of which is as follows:
“Or cases might occur where the fact that the deceased met the defendant under the particular circumstances and in connection with previous facts might show that the deceased sought the meeting and with a deadly purpose, and be in itself an overt act.
“Accordingly it has been held that a person about to be attacked is not bound to wait until his adversary gets ‘the drop on him’ before he can take steps to defend himself, but he may safely act upon appearance and kill in self-defense.”
A leading case in Tennessee upon this subject is that of Jackson v. State, 6 Baxt., 458, where Judge Robert McFarland, speaking for the court, said:
“It is said there must have been an overt act of the deceased at the time, showing his deadly purpose; but what is an overt act, and who is the judge whether or not there was such overt act? If the parties, previous to the fatal meeting, had been friends with no hostile feeling, the deceased a person with mild temper, certainly an overt act upon the part of the decased, that would justify the defendant in taking his life upon the assumption that it was necessary to do so in order to*94 save Ms own, onglit to be some demonstration of a very decided character, indicating a .deadly or dangerous purpose. On the other hand, if the parties were deadly enemies, and the deceased had previously made attempts or threats against the life of the defendant, and was known to be a person of violent and dangerous character, likely to execute his threats, then in such case, upon the parties meeting, the defendant would not necessarily be bound to wait until his adversary had actually drawn a deadly weapon, or was in the very act of striking. The necessary overt act in the one case might be different from the other. It is difficult to lay down a rule strictly covering all cases. The circumstances of the cases differ so widely. The overt act that will justify the defendant in assuming that his own life is then in danger must depend upon the circumstances of each particular case. Cases may be readily supposed, and no doubt in reality often occur, when to require a defendant to wait until there would be but little chance left of successful defense. Cases where the deadly purpose of the party is so- fixed and determined, his character so reckless and bloody, his use of deadly weapons so expert and skillful, that to wait his attack would be to wait almost certain death, and the result of the encounter would often depend upon which was the quicker in action. Tn cases of this character, where the parties meet, a very slight movement might justify either party in acting at once upon the assumption that his life is then in instant peril, or cases might occur where the fact that the deceased met the defendant, under the particu*95 lar circumstances and in connection with previous facts, might show that the deceased sought the meeting with a deadly purpose, and he in itself an overt act.”
Plaintiffs in error rely upon the case of Foutch v. State. 95 Tenn., 713, 34 S. W., 423, 45 L. R. A., 687; but it does not apply to the facts in this record. What occured at the time Foutch killed Malone is not stated in the opinion; hut it does appear that, instead of these parties being hostile to each other, upon the day of the homicide Foutch had acted as mediator between his sister and Malone, and was upon friendly terms with the latter. What is there said must be confined to the facts of that case.
The.contention of plaintiffs in error is that a man of known determined character, bitterly .hostile to another, whose life he has threatened to take if a certain thing happens, which threat is communicated, and the thing-immediately happens, can, within a few hours thereafter, approach him for the discussion of their differences, without communicating his change of mind, under such circumstances as justified his enemy in believing that the deadly threat was about to be executed, and his life was in danger, and, wlien the latter undertakes to defend himself, slay him with impunity.
Such a doctrine would be monstrous. It is not the law of Tennessee. This is admitted. In brief for plaintiffs in error, it is said:
“We do not deny the general rule that one who takes the life of his adversary in a conflict in which he is the aggressor, or which is provoked or brought about by*96 Ms unlawful act, is not excusable on tbe ground of self-defense.
“This proposition is too well settled to be questioned.”
In Rippy v. State, 2 Head, 219, Judge Caruthers, in treating the doctrine of self-defense, said:
“It is scarcely necessary to remark that a real or apparent necessity, brought about by the design, contrivance, or fault of the defendant, is no excuse.”
In Irvine v. State, 104 Tenn., 148, 56 S. W., 848, it is said:
“The trial judge in this case, with unusual ability and care, instructed the jury. After stating in general terms the respective contentions of the State and the defense, he said to them in effect, if they found that Warren and Drew Irvine, or either of them, made so violent an assault upon the deceased as to create in his mind a reasonable and w’ell-founded apprehension that he was in imminent danger of death or great bodily harm, and, acting under this apprehension, he, with his pistol, made a counter deadly assault upon them., they would not be justified in taking his life, unless first they had abandoned the combat and notified, by words or acts, their adversary that they had done so, and, if they had not time to do this, then, being at fault, they must take the consequences; for as the deceased, acting upon the appearances created by their wrongful acts, would have been justified in slaying them, the defendants, whose fault created these appearances, could not make the legal acts of the deceased looking to Ms own defense, a justification for the homicide.”
And again, in the same case, another.instruction held sound was in these words:
“On the other hand, with equal emphasis and intelligence, he told the jury that where the assailant, by the violence or fierceness of the attack, put the assailed party in danger of felony to life or limb, or gave him reasonable ground to suppose that he was in such danger, then the latter had a right to' draw a deadly weapon and slay, if necessary, and the «former could not kill in his own defense, unless he had first withdrawn from the combat, and by word or deed given the assailed.notice of such withdrawal.”
In State v. Hecker, 109 Cal., 463, 42 Pac., 312, 30 L. R. R. A., 407, it is said:
“For, as the deceased, acting upon the appearances created, by the wrongful acts of. the aggressor, would have been justified in killing him, he whose fault created these appearances cannot malte the natural, legal acts of the deceased, looking to his own defense, a justification for the homicide. Before doing so, he must have destroyed these appearances, and removed, to the other’s knowledge, his necessity, actual or apparent, for self-preservation.
“And if the circumstances are such, arising either from the condition of his adversary, caused by the aggressor’s acts during the affray, or from the suddenness of the counter attack, that he cannot so notify him, it is the first assailant’s fault, and he must take the consequences.”
“If his intentions were peaceable and his mission an innocent one, why not apprise the deceased of it; and especially so when, if it be true, he saw deceased mistaking his motives and purposes and apparently preparing to draw a deadly weapon upon him? Under these circumstances, can there be the slightest doubt that the defendant, intentionally provoked the occasion which produced the killing? If so, there can be no self-defense in this case.”
In Allen v. State, 66 Miss., 385, 6 South., 242, the facts stated in the opinion are as follows:
“The deceased was a ‘section boss’ on the Illinois Central Railroad, and the accused was one of . the hands working under him. On the morning of the killing the deceased had a difficulty with the accused, and cursed him and exhibited a pistol. The accused left the road, .and soon afterward the deceased also left, returning in an hour or two with a gun loaded with ‘buckshot.’ He walked up the track, looking down on the ground, and while near the laborers engaged in work, and in a deep cut, he was accosted by the accused, who was on the bank some 40 feet above him,- who said, ‘Mr. Hadnott, you cursed me this morning and had a pistol, and now you have a gun.’ Deceased immediately turned in the direction of the accused and raised his gun. Where*99 upon, the accused shot and killed him. No witness for the State or the defendant had given any evidence of threats made by the accused at the time he left the road in the morning.
“He testified as a witness in his own behalf, and according to his own evidence, the verdict is manifestly right.
“Accepting his account of the killing this is what occurred : After the difficulty in the morning, he went to his home, loaded his shotgun, and returned to the place where Hadnott was, to compromise the difficulty, taking the loaded gun along to protect himself, as Had-nott, he says, was ‘very mad when I left and a high-tempered man.’ He did not go along the road, for .fear Hadnott would shoot him on sight, but went on the bank, and accosted him in the words given by the State’s witness. He stood with his gnu on his right side, muzzle downwards, and, upon calling to Hadnott, he (Had-nott) turned and presented his gun, whereupon the de-defendant, he says, leveled his gun at his side, and without raising it to his shoulder*, or taking any aim, let her go.’ There can be but one construction of this conduct, and that is that the appellant purposely concealed his approach from Hadnott, secured a position of advantage, with his gun ready for instant use, called to the deceased in language not of compromise nor of peace, and, as he turned to protect himself, -fired upon him. Having-invited the danger in which he stood, it was murder to kill his adversary, even if his own life was in peril.”
“The defendant states that, while sitting at one end of the gallery which extends along the front of the building, he suddenly perceived the deceased sitting on the steps of the gallery at the other end, his back turned toward the building. Deceased was engaged in conversing with a gentleman sitting near him on the steps. Defendant says that, as soon as he recognized the deceased, he drew his pistol from his hip pocket, placed it in a pocket of the linen duster coat which he Avas wearing, arose from the seat, advanced to.wards the deceased, until he was within a few feet of him, and then, halting behind and a little to the left of him, said, ‘Now I am ready for you to shoot.’ Deceased instantly arose from his seat,- throwing his hand behind or to his side as he did so, and the defendant at once fired. The ball struck deceased in the back, two inches to the left of the back bone. He sprang forward off the steps, ran a distance of twenty-five yards and fell to the ground. He was taken into the house, and died the next day. This 'is the version given by the defendant.”
The court said:
“He who by his own conduct compels another to get ready for self-defense cannot claim that the responsive*101 preparation lias put Ms own life in danger, and thereby justified him in stopping the preparation by slaying him who was mating ready for a combat into which he had been forced. Taking the defendant’s own testimony, therefore, as absolutely true, the verdict was manifestly correct, and any other would have been clearly against the law and the facts.”
In George v. State, 145 Ala., 41, 40 South., 961, 117 Am. St. Rep., 17, the court said:
“The defendant did not have to wait until a felonious assault was made upon him. If the other elments of self-d’efense existed, and the deceased had made threats against him which had been communicated to him, he had the right to act upon any overt act or hostile demonstration which may have led to the honest belief that he was in imminent peril, but which said act or demonstration may not have amounted to a felonious assault.”
In another case it is said:
“Where the deceased had published in his newspaper articles reflecting on the accused, and the latter, seeing the deceased on the street, crossed it and addressed him, when the fatal quarrel took place, the jury must determine whether the accused was guilty of murder, and, in considering the intent of the accused in crossing the street and addressing the deceased, take into consideration the existing feeling and apprehension of the parties, and if they find that the accused calculated thereon to bring about a personal difficulty, he being prepared and intending to make use of it, if it occurred, the killing is not justified as self-defense, and is murder.” Baker v.*102 Kansas City Times, Fed. Cas. No. 773, cited in Century Digest, vol. 26, p. 242.
Counsel for plaintiff’s in error cite a number of cases from other States upon this question, all of which we have examined; but we find the facts of them so different from those of the case at bar they have little or no application, and it will serve no good purpose to discuss them at length, and we will not do so.
Every man is. .bound to contemplate the reasonable and natural result of his conduct, and must answer for such result, especially when the injured party is without fault. Col. Cooper knew, as we have shown, that his appearance there would cause Mr. Carmack to believe that his deadly threats were about to be executed, and to act in self-defense, and he cannot rely upon the conduct which, he induced to justify him in bringing about the death of his enemy.
A strong argument is made to sustain a separate defense supposed to exist in favor of Robin J. Cooper, because of the claim that he tried to. prevent his father from assaulting Mr. Carmack, and was only present in obedience to a natural filial desire and duty to protect his father in the event of a hostile meeting. It is conceded that he did intervene to help his father, and that he fired the shots that caused the death of Mr. Carmack, and there is much to show that he did all he could to prevent a hostile meeting.
The general rule is that one who intervenes in a difficulty between others stands with, and must accept all the responsibility, and liability of, the party for whom
This (the first) assignment of error must be overruled.
The second assignment is directed to a special portion of the charge. Before quoting the excerpt from the charge, it is necessary to say that, after the trial judge had stated the theory of the State, he said: “Now, gentlemen, if you believe this insistence to be true and fully warranted by the facts, and are satisfied of the' same beyond' a reasonable doubt, it would be your duty to convict all of the defendants for the crime and felony of murder in the first degree, either with or without mitigation.” He then added the following matter, which is objected to:
•“Or, if you further believe from the facts that Robin and John D. Sharp were standing on .the corner of Union street and Seventh avenue North, as above stated, and saw Senator Carmack coming, and that defendant D. B. Cooper came up. and made inquiries as to what was the matter, and, looking back, saw Senator Car-mack, and thereupon determined to go and meet him and have a talk with him, and, if he, the said E. W. Car-mack, resented the talk on his approach, that he, the said D. B. Cooper, intended, if necessary, to take his' life, or intended to speak with him or accost him, intending to bring on a difficulty, in order to give a reason or excuse for shooting and taking the life of the deceased,' E. W. Carmack, and that the defendant Robin Cooper'*104 crossed the street with his father, or a short distance behind him, intending to second him and assist him in carrying out his purpose or purposes, as above described, and entered into the fight willingly and under the conditions above described, he would be equally guilty with the defendant D. B. Cooper, and you would be warranted in finding both of them guilty of murder in the first degree.”
Then immediately follows:
“Or, gentlemen, if you believe, taking all the circumstances and conditions into consideration which had traspired between the parties, that is, the deceased, D. B. Cooper, and Robin Cooper, that the said D. B. Cooper had threatened the life of the said Carmack, that is, that he was going to kill him, or one or the other of them must die, or that the town would not be big enough to hold them both, and that he had written a note for the purpose of sending the said E. W. Carmack, stating in substance what had already been sent as a message by Mr. Craig to the deceased, and that he did not send the note at the solicitation of friends, but, on seeing Senator Carmack, his intention to take his (Car-mack’s) life was revived, if he ever had it, and that he formed at that time a fixed purpose to carry that intent into execution, and crossed the street for that purpose, either to open a fight directly on their getting together, or having a conversation with him, intending thereby to bring on a fight, and, if the said E. W. Carmack resisted, to take his life, and that Robin Cooper was present intending to assist his father in any and all extremes*105 and under any and all circumstances, it would lbe for you to determine Avhether or not the approaching of Ool. Cooper and the language used by him as he approached, if any was used, was such an overt act as would reasonably cause the deceased to believe that he, the defendant D. B. Cooper, was about to carry his alleged threat into execution, and that he was approached by both of them in this manner and form, and had reason to believe that his life was about to be taken or done some great bodily harm, in that event he would have the right to defend himself from the threatened attack.
“And if the defendants D. B. Cooper and Robin Cooper thus approached him, and he (Carmack) fired the first shot or shots under these conditions and circumstances, and they returned the fire, either one or both of them, and took his life and caused his death, in that event, gentlemen, the defendants could not avail themselves of the right of self-defense, unless there was something to show the deceased, either words or actions, that they had abandoned their purpose, if they ever had any, and did not mean to carry the alleged threats into execution; but whether there was or was not an overt act of the defendants D. B. Cooper and Robin Cooper is a matter for you to determine in the light of all the proof which the court has permitted the witness to state in your hearing for your consideration.
“In other words, if you believe from the facts that the defendants D. B. Cooper and Robin Cooper approached Senator Carmack on a mission of peace and for the pur*106 pose of having a conversation, and for no other purpose, and that there was nothing in their conduct to indicate any other purpose, or that there was no overt act or word used on their parts which would warrant the conclusion that they intended to attack him, take his life, or do him any great bodily harm, in that event, if they were attacked by the deceased, they would have a right to use such means as were in their power for their self-defense, as above set out and described. But if they intended, as above stated, tp talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased, if he made any resistence, in that event the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
. Then, after stating in a narrative • form the theory of defendants down to the point where they had reached the corner of Vine street or Seventh avenue and Union street, the charge continued:
“That as soon as the defendants John D. Sharp and Robin Cooper reached the corner of Vine street, or Seventh avenue, and Union street, Robin Cooper discovered the deceased, Carmack, on the opposite side of Vine street, coming north on Vine street in the general direction of them. Immediately upon Robin Cooper seeing Carmack, the deceased, and realizing that possibly there might be a meeting between Carmack and D. B. Cooper, and knowing, or believing, that said Carmack had not been informed of the determination that his*107 father had reached not to send him the note which he (Carmack) had been informed, through the witness Craig, the night before, that the'defendant D. B. Cooper intended to send, and fearing that if they did meet that there wonld he a difficulty between them, or that the said Carmack wonld attack the .defendant D. B. Cooper, the said Robin Cooper at once turned to his. father, the said D. B. Cooper, and said to his father, his father being some twenty-five or thirty feet down the street, £Hurry up, Papa,’ or 'Gome on,’ or words to that effect, and thereupon said D. B. Cooper replied, 'All right, wait a minute;’ that Robin Cooper stood there until his father came up, and that Robin caught him, defendant D. B. Cooper, by the arm, and' turned him, said D. B>. Cooper, away from the direction in which Carmack was coming, and up toward the direction of the Governor’s Mansion, to which he (Cooper) was going, and as’he was hurrying him across the street, there was something in his (Robin Cooper’s) manner and his manifest anxiety to get his father across the street that caused him, the said D. B. Cooper, to turn around, and upon doing so he saw the said E. W. 'Carmack approaching; that up to this time he had no expectation and no thought and no idea that he would meet the said E. W. Carmack at this place.
“That neither he nor Robin Cooper nor John D, Sharp knew the habits of the said E. W. Carmack.
“That they did not even know where he lived, and that they had not seen him during that day, and consequently had no reason to expect or believe that they would see*108 him .at this place at this time, and. that their meeting here was purely an accident.
•“That as soon as the defendant D. B. Cooper saw Car-mack, he turned hack from the way that they were going, and upon an impulse which suddenly came to him he started down in the direction from which Carmack was approaching, for the purpose of having a talk with him, and to demand of Carmack that he stop the further offensive use of his name in his paper, the Tennessean, and he started down in the direction from which Car-mack was approaching, going' diagonally • across the street from about the northeast corner of Union and Vine streets, towards the entrance to the Polk Plats, on the opposite side.
“That his son, Robin Cooper, after hearing his father say that he was going over to have a talk with Carmack, after a few moment’s hesitation, followed his father.
“That after the defendant D. B. Cooper had gone upon the sidewalk in front of the Polk Plats, and was within about ten or fifteen feet of Carmack, his son, . Robin Cooper, being out in the street, but near the curbing, at a point about opposite D. B. Cooper, and as Carmack was in the act of passing Mr. and Mrs. Eastman, and just as he had spoken to them, which he did in the act of passing, defendant D. B. Cooper raised his empty hand, and, extending it in the direction of the deceased, addressed him, ‘Mr. Carmack.’
“That immediately upon being thus addressed the de- - ceased (Carmack) looked up, saw Cooper with his empty hand extended, immediately drew his pistol from his*109 pocket, either Ms overcoat pocket or Ms Mp pocket (it is immaterial which ), and, as he drew his pistol, stepped slightly to the rear, and in the direction of the curbstone, so as to place Mr. and Mrs. Eastman between him and defendant D. B. Cooper, Oarmiack stepped in front of Mrs. Eastman from where defendant D. B. Cooper stood, thereby placing Mrs. Eastman between himself and the said D. B. Cooper, he, the said D. Bi. Cooper, said in substance, ‘Why are you hiding behind that woman, you dastardly coward,’ or, ‘It is d — d cowardly to he hiding behind a woman with a pistol in your hand/ or words to that effect, to which the deceased (Carmack) made no reply, but continued in the direction of the curbstone, with his pistol in his hand, facing north, until finally he got off the pavement, and stepped into the gutter, behind and east of the south pole.
“That as the deceased (Carmack) made this movemnt, the defendant Robin Cooper sprang upon the pavement, seeing that the deceased had a pistol in his hand, and that he had, with his drawn pistol, gotten behind the post, sprang up on the pavement, and passed rapidly between his father and the post behind which the deceased was standing, and on down the pavement until he reached a point on the pavement about opposite the posts, and between the posts and the west side of the pavement, and as he did this Carmack fired from behind the south pole, his arm and pistol being extended between the north and south pole, this shot striking the defendant Robin Cooper, from his left, passing through the knot in his necktie, and ranging to the right, through his*110 collar and sliirt, and finally embedding- itself in the top of his right shoulder, and Carmack was at such close proximity to him when this shot was fired that the left side of his face and collar on the left side were badly powder-burned.
“That immediately upon receiving this shot Robin Cooper moved and turned slightly to the east, and in the direction from which the shot came, drawing his pistol, as he made this move, from his overcoat pocket, and that up to this time he had not drawn or attempted to draw any pistol, a.nd as he did so, that is to say, while in the act of moving and turning in the direction of Carmack, and in the act of drawing his pistol, Carmack fired a second shot, which passed through the clothing or sleeve oh his left arm.
“Immediately upon firing this second shot, Robin then passed just below the south pole, and turned, facing Car-mack, Avho, in the meantime — that is, Carmack — had withdrawn his pistol and arm from between the poles, and was standing with his left side exposed to Robin Cooper, facing him with Mr. Carmack’s pistol pointed at Robin.
“That immediately upon getting in position, as heretofore indicated, just below or south of the south pole, and very close to it, Robin Cooper began firing upon Car-mack, and fired three shots, when he realized that his shots had taken effect, and that Carmack was falling; that he then fired no more, and Carmack fell instantly as the result of these shots.
*111 “Now, gentlemen of tlie jury, I charge you if, in view of all the evidence in this case, you are satisfied that the killing occurred under these circumstances, or have in your minds a reasonable doubt as to whether it occurred under these circumstances or not, then the defendants would he entitled to the benefit of the doubt, and your verdict should be as to all of these defendants ‘not guilty.’ ”
If there be any error in the first paragraph quoted above, as is complained of by the plaintiff's in. error, it is fully cured by what immediately follows in the charge as set forth above. But we do not think there is any error in the paragraph, when properly under-stood. The plaintiffs in error, instead of taking the paragraph as written, have cut it up into two paragraphs, dissociated it from its context, and then assigned error against the new paragraphs so constructed. This is not a proper method of assigning error against the. charge of the trial court.
Moreover, the paragraph complained of contained an instruction as to what would make the defendants guilty of murder in the first degree, and if there was any error in this, it is not reversible error, because the defendants were convicted only of murder in the second degree. Where a defendant is convicted of a lower grade, error in the charge of the court as to the higher grade is not reversible. Wickham v. State, 7 Cold., 529, 530; Parham v. State, 10 Lea, 502; Tarvers v. State, 90 Tenn., 498, 499, 16 S. W., 1041, and the cases cited: Frazier v. State, 117 Tenn., 441, 446, 100 S. W., .94;
The third assignment of error is directed to the fourth paragraph, which we have quoted from the charge in disposing of the preceding assignment. That paragraph reads:
“In other words, if you believe from the facts that the defendants D. JB. Cooper and Robin Cooper approached Senator Carmack on a mission of peace and for the purpose of having a conversation, and for no other purpose, and that there was nothing in their conduct to indicate any other purpose, or that there was no overt act or word used on their part which would warrant the conclusion that they intended to attack him, take his life, or do him any great bodily harm, in that event, if they were attacked by the deceased, they would have a right to use such means as was in their power for their own self-defense, as above set out and described. But if they intended, as above stated, to talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased, if he made any resistance, in that event the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
It is assigned as error to the first sentence of this paragraph that the jury may have been misled by what is there said upon the subject of “a mission of peace;” that-is, by the use of that expression, since Ool. Cooper testified that he was going to tell Senator Carmack in the
We do not think there is any force in this objection that the jury could have had such a misunderstanding of the matter as is suggested by counsel.
The second division of this- assignment is addressed to the last sentence of the paragraph above quoted, which sentence is:
“But if they intended, as above stated, to talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased if he made any resistance, in that event, the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
The fourth assignment of error is based upon the failure of the trial judge to define or tell the jury what would or would not amount to the provocation of a difficulty. What his honor said upon this subject was as follows:
“A defendant cannot be denied the right to rely on the plea of self-defense merely because he was in any sense, justly or unjustly, the ‘aggressor,’ or ‘in fault/ or ‘provoked the .difficulty’ in which another was slain. In order to deny him the right to rely upon the plea of self-defense, it must appear that he was the ‘aggressor/ or ‘in fault/ or ‘provoked the difficulty’ in such way and with such intent as the law contemplates in the use of these terms. • It is not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase; nor is it every fault which a man might commit that precludes him from defending himself when violently assaulted or menaced; nor is it every ‘provocation of a difficulty/ which robs him of the right of self-defense. His right depends upon the character and intent of his act. Language used, however opprobrious, is not sufficient to deny him the right. If defendant’s act is an assault, or the menace of one by an overt act, or the provocation of a difficulty with the intent to inflict death or great bodily harm in the event it is resisted, made of*115 malice to bring about that result, and enable tbe pro-yoking party to wreak bis yengeance upon tbe assailant, that is an 'aggression,’ or 'fault,’ or 'provoking a difficulty,’ within tbe legal sense and meaning of tbe term, and if tbe combat is provoked, or tbe occasion to kill is produced on this account, with this intent, and for this purpose, defendant cannot rely upon tbe plea of self-defense; otherwise, be can.”
This was sufficient. Foutch v. State, 95 Tenn., 711, 716, 717, 718, 34 S. W., 423, 45 L. R. A., 687.
Tbe fifth assignment rests upon the refusal of tbe trial judge to charge defendant’s request No. 1, which is as follows:
"Gentlemen of tbe jury, it is insisted by tbe State in this case that tbe difficulty, in which tbe deceased, Car-mack, lost his life, was provoked or brought about by tbe fault or contrivance of tbe defendants, or some one of them, and particularly of tbe defendant D. B- Cooper, and consequently that these defendants, although they may have been assaulted and shot at by Senator Car-mack, bad no right to shoot him; for, having provoked the difficulty, having produced the necessity for Carmack shooting at them, under the law they would not have the r-ight to shoot at Carmack, and would be deprived of the doctrine of self-defense.
''Nowr, in this connection I charge you this: In order for this doctrine to apply, and before these defendants can be deprived of the right of self-defense, if you find that the deceased, Carmack, at the time he was killed,' was making a deadly assault upon Robin Cooper, or*116 upon D. B. Cooper, it must appear to your satisfaction, and beyond a reasonable doubt, that these defendants, or some one of them, must have sought or provoked this difficulty with the deceased, with the intent of killing him or doing him some great bodily harm. In order to deny the defendants the right to rely upon the plea of self-defense, it must appear that they were the aggressors, or in fault, or provoked the difficulty in such way and with such intent as the law contemplates by the use of these terms; and in this connection I charge you, gentlemen of the jury, that the defendant D. B. Cooper had a right under the law to seek out, or had a right under the law, when he saw deceased, Carmack, approaching him, to go across the street and meet him and have a talk with him, and to protest, and, if necessary, to demand that the said Carmack should cease the offensive use of his name in his paper; and I charge you further in this connection that the fact that Cooper and his son both may have been armed, and the fact that Cooper may have the night before, through Ed Craig, said that one or the other of them, either he or Carmack, had to die if his name was used any more in an offensive way, and the fact that he sent this threat to Carmack, his name again appeared in the paper in such a way as to be offensive to Cooper, that nevertheless, and without regard to all this, Cooper still had the right under the law to approach Carmack, and to make the demand upon him that his name be no longer offensively used in the paper, and the mere fact that he did approach him for this purpose, if this was his purpose, would not be such an ag*117 gression upon Cooper’s part, or such provocation by Cooper or bis son and codefendant, Robin Cooper, of exercising the right of self-defense, and of shooting and of killing Carmack, or shooting except in their necessary self-defense, and all that they did was simply to jvalk across the street to meet him, and, as they approached him, defendant D. B. Cooper, with his empty hand extended, addressed him as ‘Mr. Carmack.’ If, nnder these circumstances Carmack immediately drew his pistol, he himself put these defendants upon the defensive, and in that event either or both of these defendants had the right to kill him, if it appeared necessary to kill him in order to save either of them from death or great bodily harm at his hands; and this would be none the less true, although it may appear to you from the evidence that defendant D. B. Cooper said in substance, ‘Well, here you are all right; I have got the drop on you,’ if at that time it appeared or should have appeared to the deceased that the defendant D. B. Cooper did not have the drop on him, and had his empty hand only extended.”
This request was properly refused. So far as correct, it has already been given in the portions of the charge which we have quoted, heretofore in this opinion. In addition, it contains certain positive errors. It makes defendants’ right of self-defense rest upon whether they had formed a design to kill Carmack before approaching him, whereas a proper statement of the law would have made it rest upon whether, in approaching Carmack they gave him reasonable grounds to believe himself in danger of death or great bodily harm at their hands. Irvine v.
In addition, the foregoing request asked the court to charge that the deceased had no right to act in his self-defense, and was in the wrong in shooting when he did, although it might appear in the evidence that, Avhen defendant Col. Cooper approached Mr. Carmack, he said in substance to the latter, “Well, here you are all right; I’ve got the drop on you,” if at that time it appeared, or should have appeared, to Mr. Carmack that the defendant Col. Cooper did not have the drop on him, and had his empty hand only extended; and this, although Col. 'Cooper had the night before sent a message to Mr. Carmack that, if his name. appeared in the Ten-
We have stated the authorities upon this question in disposing of the first assignment of error, and will not here repeat them.
The sixth assignment of error is based on the refusal of the circuit judge to charge defendants’ second request.
The seventh assignment is based upon the fact that the trial judge stated as a part of the State’s contention, or theory of the case, that Robin Cooper shot Mr. Carmack from the rear. Such appears to have been the contention of the State, and there is at least some apparent evidence to that effect, since the record shows that one of the shots fired entered in the back of Mr. Carmacks neck and passed through to the front. There was no error in the matter complained of.
The eighth assignment is that the trial judge gave undue prominence or emphasis to the State’s theory in his charge. This contention is based upon the following passage, immediately following the statement of the respective theories of the State and of the defendants:
“Remember, gentlemen of the jury, that the above are merely the insistences of the State and of the defendants, which they claim is a reasonable and fair deduction from all the proof, as insisted on by both the State and by defendants; but remember, further, that they are merely-the insistences of the State and of the defendants, and that you, as judges of the law and the facts, are not bound to accept either or any part of-them, Jmt may reject any portion or all of either or both of these insist-ences, and it is your duty to do so in so far as you believe, if you do, that they are not supported by the proof as deposed to by the witnesses; but if you are satisfied that the State’s theory is a fair reasonable deduction from all the evidence, when taken as a whole, and that, when so*121 taken, it establishes the .defendants’ guilt beyond a reasonable doubt, as to either one or more of them, it would be your duty to so find; but if you have a reasonable doubt as to their guilt, that is, as to either one or both of them, or more of them, you should give them the benefit of the same, and ‘not guilty’ should be your verdict.”
In the preceding paragraph, the trial judge had just told the jury that, if they believed John D. Sharp’s theory of the case, they should find “not guilty,” and, in the paragraph next preceding that, that they should find the Coopers “not guilty” if they believed the theory of the latter, or had any reasonable doubt in respect thereof.
We do not think the jury could have attached any significance to the passage complained of as indicating the opinion of the trial court as to the soundness of the plaintiff’s case. The objection is overcritical.
The ninth assignment is based upon the refusal of the trial judge to charge defendants’ fifth request, as follows:
“Among the other evidence the court has permitted you to hear in this case is the testimony of Mrs. Eastman as to certain accusations and denunciations she made against the .defendant D. B. Cooper, immediately after the shooting, while she was standing in the Shank-lin yard, to the effect that he (Cooper) had murdered Carmack. This evidence has been admitted to your consideration as a circumstance tending to show the guilt of the accused, provided you believe in the first place that if this language was used or accusation made by*122 Mrs. Eastman that Cooper heard and understood it at the time; and, second, that it was incumbent upon D. B. Cooper, under all the circumstances surrounding- the parties at the time, to make a denial of her statement. If you have a reasonable doubt in your mind, even though you may be satisfied that. Mrs. Eastman made such a statement, as to whether D. B. Cooper heard it, or understood its import, or if it appears that D. B>. Cooper simply regarded what she was saying as the exclamation and outburst of ah excited woman, then, under these circumstances', he would not be called on to deny it, even if he heard it, and the-fact that he made no denial could not be looked to as a circumstance tending to show his guilt, even if he heard it, if in view of all the circumstances, the condition of his son, the fact that he was wounded, the fact that D. B. Cooper at that time did not know the extent of the injury to his son, the further fact, if such be a fact, that D. B. Cooper had not shot Car-mack, if in view of all these conditions, and the general excitement which prevailed at the time, D. B. Cooper could not reasonably be expected to make any denial of. these charges, then the fact that he remained silent would not be a circumstance tending to show his guilt in this case, and in either of these aspects of his testimony, any such accusation or denunciation that Mrs. Eastman made would be absolutely immaterial.”
We are referred to Phelan v. State, 114 Tenn., 483, 88 S. W., 1040. If the evidence referred to could be ranged within the principle of the case mentioned, still the request would be an improper one, because, instead
“It is insisted on behalf of the prisoners that there are certain errors of law in the record for which a reversal is demanded. And, first, that the court erred in allowing the declaration of the deceased, made directly after the mortal wound was given, to the effect that these prisoners had killed him, to go to the jury. The testimony of Mrs. Isbell thus gives the circumstances under which this declaration was made: After some firing, I don’t know how many shots, Russell, the deceased, ran into the dining room. As he went through the door, Joseph Braswell fired at him. He returned in a little time, and as he came in the Braswells went out, and a pistol or two fired out of the doors. As he came in from the dining room, he said: “Angie, I’m shot. Teak and Joe Braswell are the ones that shot me.” When Russell came in at the door and told me he was shot, he said he*124 was hurting. Defendants could have heard him. They were right about the door.’ This declaration was so near to the main fact as to make it a part of the transaction. We think it was properly admitted as the res gestae.”
Further on in the opinion the court said, quoting from Chief Justice Shaw:
“The doctrine does not presuppose that the assailing party heard the declaration, or that it was at all necessary that he should hear it, in order to have an opportunity of denial. The proof of an accusation in the presence of a party accused of crime stands upon a different principle. The declaration in the other case is admitted, not because it is an accusation, but because it is a part of the transaction which is undergoing investigation.”
Again the court said upon the same subject :
“We apprehend that whatever was then and there said and done, immediately before or after the transaction, which is inseparably identified with and calculated to explain it, may be properly classified as part of the res gestae. The declaration in such a case is a verbal act, and does not stand for accusation, but stands for a fact. If the deceased had been shot by the prisoners with a rifle or shotgun within full view, and had immediately cried out that the prisoners had shot him, this would be a fact inseparable from the transaction itself, and would be admissible as part of it — not conclusive against the prisoner, but for what it was worth as a verbal act constituting a part of the res gestae. The illustration*125 presents an extreme case. In the case of the defendants, the declaration was made immediately after the fatal shot, and in the presence, and no doubt in the hearing, of the prisoners. We have no doubt upon the point of the admissibility of this declaration.”
The statement of a third party at the time of the transaction, and growing immediately out of it, is a part of the res gestae. Morton v. State, 91 Tenn., 443, 444, 19 S. W., 225.
The tenth assignment is based upon the refusal of the trial judge to charge request No. 9, which was as follows:
“In determining the credibility of witnesses and the weight to be given their testimony, you, gentlemen of the jury, should look, not only to the integrity of the witnesses and their purpose and intention to testify truthfully, but you should also look to all the circumstances immediately surrounding the witnesses at the time of the events about which he or she testifies transpired. It is ■no impeachment of the integrity of a witness to state that his or her memory is defective, or that by reason of the exciting circumstances with which the witness was surrounded he or she incorrectly understood or remembered the words used. Now, it is not insisted by the defendant in this case that Mrs. Eastman, in undertaking to state what occurred, has testified corruptly or intentionally false; but it is insisted that the suddenness . with which the encounter occurred between the deceased and the defendants, the fact that the encounter was not anticipated or expected by Mrs. Eastman^ the very short*126 time in which the whale transaction occurred, the excitable and nervous disposition, are all circumstances that can be and should be looked to by you-upon this question, not whether Mrs. • Eastman has intended to tell the truth, but whether she has been- able to correctly understand what was said by D. B. Cooper, or has been able to remember accurately what he did say. I instruct you, gentlemen of the jury, that it is the law that the testimony of any witness, in undertaking to repeat the words or language of a third person, especially when heard under exciting circumstances and conditions, is the most unsatisfactory evidence known to law, by reason of the fact that they are always liable to be mistaken and misremembered, and their meaning is liable to be misunderstood and exaggerated; and, therefore, the court instructs you that evidence of this character should be received with great care and caution.”
This request was properly refused, because it is argumentative, and it assumes as a fact, as to which there is no evidence, that Mrs. Eastman was of an excitable and nervous disposition, and, besides, it is improper that the evidence of a single witness should be in this manner singled out-by the court and commented on in the charge.
The eleventh assignment of error is based upon the action of the trial judge in charging as follows:
“The court further charges you that it is insisted on by counsel that extrajudicial conversations are the weakest of all contradictory processes; that is, conversations had out of court by witnesses with persons not*127 under oath and spoken in a general way — the reason being, first, the fallibility of the human memory as to the exact language used in a particular conversation. The slightest change in the language used may alter the whole sense of the conversation or a portion of it; hut you will take these, if any appear in the proof, and consider them along with the other evidence, and, after having done so, give them such weight as you may think they deserve.”
The criticism on this portion of the charge is, in substance, that the court did not tell the jury what he thought, but simply what counsel thought, or insisted. It is apparent, however, that the court adopted the contention of counsel upon the point, and the jury must have so understood the matter. He told them, in effect, that, taking all of these infirmaties into consideration, they should give evidence of this character such weight as they think it deserved. There was no positive error in the excerpt quoted, and there was no competent request to make it fuller and more complete.
The twelfth assignment is based on the refusal to charge defendants seventh special request, which was as follows:
“Although Senator Carmack may have believed that D. B. Cooper and Robin Cooper were approaching him for the purpose of killing him, yet, if the proof shows that the said Robin Cooper and D. B. Cooper had no such intention, Carmack would not have been justified in drawing his pistol and attempting to shoot them on account of what he believed their intention to be. In other*128 words, the right oí these defendants must he determined by what was in their mind, and not by what was in Mr. Carmack’s mind at the time, and in this connection I again remind you, as I did at the time that that'evidence was introduced, that you cannot look to the testimony of witnesses Witherspoon and Landers as to what Land-ers says he told Carmack about Cooper intending to kill him on sight as proof that defendant D. B. Cooper ever made such statement as that, nor can that testimony be considered by you at all in determining what Cooper’s intention was. It may be regarded in determining what Carmack’s was; but, as Cooper cannot be charged with Carmack’s intention, it would be incompetent and unfair to defendants to consider it as evidence against him.”
There is no error in refusing this request. As to the first branch of it, it leaves out of view the words of Col. Cooper showing an imminent attack on Mr. Carmack, and hence the grounds of apprehension on the part of the latter, growing out of such attack and previous occurrences and threats, and makes the right of self-defense on the part of Mr. Carmack turn upon the real purpose of Col. Cooper. This is not the law. If it were, a man might approach another, showing distinct overt acts indicative of a purpose to do great bodily harm, and, when injured on account thereof, show that he had no real purpose of doing harm. The assailed party must judge by appearances as. things look to him.
As to the second branch, there was no error in refusing to repeat rulings in evidence.
They present the point, speaking generally, that the trial judge erred in failing to charge as to the separate criminal responsibility of Robin Cooper, as distinguished from his father. The complaint is that they are in the charge linked and hound together; the case of the son being made to depend upon that of the father. The point is particularly presented in requests Nos. 1 and 10, and error is assigned upon the refusal of the trial judge to give these in charge to the jury.
Request No. 4 was as follows:
“If you believe, from all that transpired during that day, as well as what occurred at the corner when Robin first discovered the deceased, that Robin in good faith believed, when his father left him and started down to meet Carmack, that defendant D. B. Cooper was going for no other purpose than that purpose for which said D. B. Cooper said he was going, to wit, to have a talk with him, and if in this belief Robin accompanied his father, and when they met Carmack, at or about the poles, Carmack immediately began firing upon Robin, Robin Cooper, under the law, had the right to shoot and kill Carmack, if necessary for his own-protection, although defendant D. B. Cooper may have gone there for the purpose of provoking a difficulty.”
Request No. 10 was this:
“If you find from the evidence that Robin Cooper crossed the street and went to where the deceased was*130 without any intention of killing the deceased, or doing the deceased great bodily harm, or without any intention of bringing on a difficulty with the deceased, for the purpose of killing the the deceased, or doing the deceased great bodily harm, that is, if Robin went to the place of the meeting without any criminal intent, and if you further find from the evidence that the deceased, without any hostile demonstration on the part of Robin Cooper, drew a pistol and fired at Robin, or made any hostile demonstration such as would reasonably induce the belief in Robin’s mind that the deceased intended to do him great bodily harm, and If you further find that Robin then killed the deceased, a case of self-defense is made out, and you should find all the defendants not guilty.” •
In order to properly dispose of this matter, it is necessary that we should refer to the evidence of Robin Cooper, to ascertain whether there was any basis of fact upon which to predicate the matters contained in. the request.
On examination in chief, he said:
“Q. Now, why was it you went with him, or followed him, if you believed that was his mission?
“A. After he had gotten about halfway across the street, I felt that it was my duty, as he was my father, and I believed that he was unable to protect himself if he should* be attacked, to go with him, and be there if Carmack should attack him.”
After relating how they went down to the point where his father stopped and spoke to Mr. Carmack, he says:
*131 “Papa said, ‘Senator Oarmack/ and immediately when papa said it, he looked, and in an instant had drawn a pistol.
“Who drew the pistol?
“A. Senator Oarmack.
“Q. Well, what did he do with the pistol when he drew it? Go on and tell what occurred.
“A. Well, it came ont jnst like that (illustrating). It paralyzed me for a moment, and Senator Oarmack crossed the sidewalk, backing slightly towards the two posts, and intuitively I jumped forward, to the sidewalk between my father and Senator Oarmack.
“Q. When? At what time?
“A. When he was getting behind the posts. I had hardly gotten on the sidewalk, and right at the north post, probably two or three feet inside of the north pole.
“Q. You mean inside, back from the posts towards the fence?
“A. Towards the fence; I think even with the north pole, but about two or three feet towards the fence.
“Q. Which way were you faciug then?
“A. Facing south, and a shot exploded, it seemed to me, almost in my face, coming between the posts. I could see the pistol and Senator Carmack’s arm.- He was standing right in the gutter, at the lower or the south post.
“Q. Well, where did the shot hit you?
“A. That shot hit me here.”
Again, he says:
*132 “Yes, sir; I was on a terrible nervous tension and excitement and strain, and I didn’t see anything after I intuitively jumped forward between papa and Senator Carmack.”
Again:
“Q. Did you move rapidly?
“A. I don’t know, sir; I know I just jumped between them.”
•He further says on cross-examination:
“Q. Now, where were you when yOur father said— addressing him as-Senator Carmack?
“A. I was in the street there just about even, probably slightly behind papa, right near him. I had got up there to intervene, if I could; if I.could help papa.”
Also this:
“Q. And you sprung in between him and your father?
“A. Yes, sir.”
It is an undisputed fact that Robin Cooper, at this time, knew of his father’s threat, communicated by Mr. Craig the night before to Mr. Carmack, that if his name appeared again in the Tennessean in an offensive, way, one or the other must die, or that the town would not he big enough to hold them both, which was the same thing; that his father’s name had appeared again the next morning in a manner offensive to him; that Mr. Carmack had not been informed of any change of purpose on his father’s part; that if they should meet with this impression still on Mr. Carmack’s mind, left by the threat to kill him by Col. Cooper, he (Mr. Carmack) would most naturally regard the approach of Col. Cooper
All of these facts are omitted from request No. 4, and the single point presented that if Robin Cooper really believed that his father intended to go down and meet Mr. Carmack for the sole purpose of talking' with him, and if he went with his father in this belief, “and' when they met Carmack, at or about the poles, .Carmack immediately began firing on Robin Cooper, Robin Cooper, under the law had the right to shoot and kill Carmack, if necessary for his own protection, although defendant D. B. Cooper may have gone there for the purpose of provoking the difficulty.” The ommission of these facts referred to, ■ absolutely necessary to a correct understanding of the matter by the jury, and confining their attention to a single, partial phase of the transaction, would without doubt have confused and misled them: Moreover, the request, as written and submitted, contained a positively incorrect statement of fact, to the effect that they met Mr. Carmack at or about the poles, and he immediately began firing upon Robin Cooper. There is no evidence in the record to this effect. The undisputed evidence is that Col. Cooper and Robin Cooper did not immediately meet Mr. Carmack; that Col. Cooper went down to the point where Mr. 'Carmack
The tenth request is open to the same objection of ignoring the essential facts just referred to, and of presenting for the consideration of the jury a partial view, wholly dissociating Robin from his father, with whom he went to the place, and whom he stood ready to support in case of a difficulty arising, which he must have known from the facts in his possession would in all human probability occur.
To authorize a reversal on account of the refusal of the trial judge to give an instruction requested, that
These requests really present the question of the rights and responsibility of one who intervenes in the quarrel of another, and it is necessary to discuss the law applicable thereto.
The rule applicable to this subject is an ancient one, and is supported, not only by the text-books, but by the weight of judicial opinion as well.
In Hale’s Pleas of the Crown, vol. 1, p. 484, it is said: “The like law has been for a master killing in the necessary defense of his servant, the husband in the deiense of his wife, the wife of the husband, the child of the parent, or the parent of the child; for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had, if it had been done by himself, for they are in a mutual relation one to another.”
In Wharton on Homicide (3d Ed.) sec. 332, it is said: “The doctrine of freedom from fault in bringing on a difficulty as a condition precedent to a plea of self-defense applies with equal force to a case in which one person interferes in a difficulty between two others in behalf, or to protect, one of them; and, generally speaking, a person who does this will not be allowed the benefit of the plea of self-defense, unless such plea would have
In Karr v. State, 106 Ala., 1, 17 South., 828, it was held that the right of a son to defend his father is coextensive with the right of the father to defend himself, and whatever the father may do rightfully in repelling an assault, actual or threatened, the son coming to his assistance may do rightfully, but that a son has not tlie right to take life to save his father from the consequences of an assault he knows the father has provoked. See, also, Pratt v. State, 75 Ark., 350, 87 S. W., 651; State v. Westfall, 49 Iowa, 328; Chittenden v. Commonwealth (Ky.), 9 S. W., 386. In Burks v. Com., 7 Ky. Law Rep., 826, it was held that a son has the right to kill in defense of his father, where the father is not at fault, and where the son has reasonable grounds to believe that his father is in danger of great bodily harm at the hands of an assailant.
In Morris v. State, (Ala.), 39 South., 608, it appeared that the defendant’s father had an altercation with deceased, who knocked him down, and was shot by "defendant. The court held that his right to kill in defense of the father depended upon the same conditions as would be necessary to excuse the father under a plea of self-defense.
In Utterback v. Com., 105 Ky., 723, 49 S. W., 479, 88 Am. St. Rep., 328, it was held that a father who shot in
In Sharp v. State, 19 Ohio, 389, there was Reid to be no error in a cliarge tRat it was true, as a principle of law, tRat a son migRt justify an assault in defense of Ris fatRer, if Ris fatRer was not in tRe wrong. But if tRe fatRer Rad wantonly made the first assault, and tRis •fact sRould appear from proof, tRe son could not avail liimself of tliis relation in Ris defense, if it appeared from tRe proof tRat Re came into tRe conflict for tRe purpose of aiding Ris fatRer in an unlawful assault.
In Foster v. State, 102 Tenn., 33, 49 S. W., 747, 73 Am. St. Rep., 855, it appeared tliat a fatRér and son were jointly indicted for the lrilling of one Woodard; tRat Woodard made a sudden, unprovoked, and violent assault upon tRe fatRer of a cRaracter likely to produce deatR or great bodily barm, and thereupon tRe son intervened and killed Woodard. TRe fatRer was acquitted, but tRe son was convicted, and tRe case was appealed to tRis court by tlie son. In disposing of tRis matter, tRe court said: “TRe acquittal of tRe fatRer raises a conclusive presumption tRat Re was guilty of no wrong in tRis difficulty with deceased. TRis being so, if tRe son really believed on reasonable ground tRat a deadly assault was being made upon Ris fatRer, and tRat owing to tRe superior'power of Ris antagonist Re would be killed or receive great bodily karm as tRe result of tRe assault, it was Ris legal right, as well as Ris filial duty, to interfere and prevent the killing or maiming of Ris fatRer,
In Crockett v. Com., 100 Ky., 382, 38 S. W., 674, it was held that where one believed, and had reasonable ground to believe, that his brother was in immediate danger of losing his life or suffering great bodily harm at the hands of a third person, and killed this person solely to prevent or avert the danger or apparent danger of his brother, and in doing so used no more force than appeared to him at the time to be reasonable and necessary for the purpose, he was excused, unless his brother, to whose assistance he went, had sought and brought on the difficulty in which the killing was done, and thereby made the danger to himself necessary or excusable on the part of the deceased, in which case the slayer could not avail himself of the danger to his brother as an excuse for the killing.
In Untrenor v. State, 146 Ala., 26, 41 South., 285, where the evidence showed that the difficulty resulting in deceased’s death was the continuation of a quarrel between him and defendant’s brother, and that defendant came in response to his brother’s call, it was held competent to show whether the brother was free from fault in bringing on the difficulty, since his fault might become material as bearing upon the action and conduct of defendant.
In Wood v. State, 128 Ala., 27, 29 South., 557, 86 Am. St. Rep., 71, it was held that one who interferes in a pending difficulty in behalf of a brother and takes the life of the other combatant stands in the shoes of the
In Tom and Robert Smith v. State, 105 Tenn., 305, 60 S. W., 145, it appeared that these two were brothers; that Tom Smith was unlawfully shooting at Bud Fowler; that thereupon Henry Fowler lawfully intervened to aid his brother and Bud Fowler, and that then Robert Smith intervened and shot Henry Fowler. It was held that this last intervention was unlawful, and that there was no error in the failure of the trial court to instruct • the jury that, if Robert Smith went to the place of meeting- with the purpose to fight only in the defense of his brother Tom, he would not be guilty of any offense; “for,” continued the court, “Bob cannot excuse himself as a guilty participant in the affray, if his brother Tom brought it on with a view to, or was at the moment engaged in, a felonious assault on Henry Fowler. In such event, as has already been seen, Tom Smith could not justify himself for slaying his adversary, and no more could Bob Smith excuse himself for his unwarranted interference.”
In State of South Carolina v. Vincent Cook, 78 S. C., 253, 59 S. E., 862, 15 L. R. A. (N. S,), 1013, 125 Am. St. Rep., 788, it appeared that the trial judge charged the
The same rule was applied in Shirrell v. State, 138 Ala., 3, 35 South., 129, where it appeared that defendant’s wife dared the wife of deceased to come into a lane, and, upon her doing so, knocked her down with a stick, when deceased took the stick from her, and while holding it, and remonstrating, the defendant ran up and struck the blow which résulted in deceased’s death. The court said here: “The defense that the act was done to prevent the homicide of the wife would be valid only where she, as well as defendant, was in a condition to invoke the doctrine of justifiable homicide.”
And he says that he did intervene; that he sprang in between Mr. Carmack and his father. It appears, therefore, that there is no basis of fact upon which requests Nos. 4 and 10 could have been predicated, that they would have been misleading if given, and were properly refused. . . *
We are of opinion, therefore, that there was no error in the action of the trial judge in refusing requests Nos. 4 and 10, above set out.
The sixteenth assignment of error is based upon the action of the trial judge in permitting the cross-examination of Col. Cooper upon certain irregularities in the conduct of his office as clerk and master of the chancery court of Maury county, happening many years prior to the date of his examination. The reason assigned is that the period is too remote, the transac
The seventeenth assignment is based upon the action of the trial judge in admitting the testimony of Dr. Witherspoon and Mr. Lander. - The testimony of the former was simply that Mrs. Burch, the daughter of Col. Cooper, made a communication to him by telephone, which he in turn communicated to Mr. Lander, to the end that the latter might tell Mr. Carmack. Dr. Witherspoon was not permitted to' tell what this communication was; so his evidence, without that of Mr. Lander, was a blank, and even if there had been a proper exception to it, no error could have been assigned upon overruling the exception, since no harm could have been wrought by such evidence. So that the merit of the ex
. The eighteenth assignment of error is based upon the action of the trial judge in permitting the attorney for the State to ask- Robin Cooper1, on his cross-examination, if he knew any reason why certain witnesses named would perjure themselves to deprive him. of his life or liberty, to which questions he replied that he did not. The questions should not have been put -in - this offensive form, but it is no ground for reversal, since it was only to ask in another way whether he knew any reason, arising out of prejudice of the witnesses against him, or by reason of the character of the witnesses, why they should testify things against him that he said were. untrue.- •
The nineteenth assignment makes the point that the trial court erred in excluding parts of Gfov. Patterson’s testimony. The governor was first introduced before the jury and his examination began. Some, controversy arising over a question asked, it was suggested to court and counsel that the jury be retired and that his evidence be heard before the court. This was done. He then- gave in detail how;, he came to go in search of
It is said that certain particulars of the conversation would be important, as showing the absence of a conspiracy to kill Mr. Carmack. The question of conspiracy is out of the way, since the jury acquitted the defendants of the charge of' committing murder in the first degree upon the person of Mr. Carmack.
It is said that there was one specific item of evidence omitted from the general statement of Gov. Patterson, which was included in his more particular statement given in the absence of the jury, to the effect that Gov. Patterson, after leaving the presence of Col. Cooper, being accompanied by Robin Cooper, on leaving
Assignments Nos. 20 and 21 are based upon the refusal of the trial judge to permit the introduction of the whole of a certain letter written by Mr. Carmack to Col. Cooper, when the former was in Washington and the latter in New York, and when they were on terms of perfect amity,’ and an. editorial in the Memphis Evening Scimitar, printed in M'arch, 1908, when their relations had become strained; the latter having been attributed to Mr. Carmack on hearsay statements from a
The twenty-second assignment of error is predicated upon the exclusion of the evidence of Mrs. Sperry and the carbon copy of the note which she wrote for Col. Cooper, and which was offered to corroborate Mr. Bradford in his testimony that the note introduced in evidence was the one which Mr. Cooper had prepared to send Mr. Carmack. The evidence was competent; but, as there was nothing in the record to controvert the testimony of Mr. Bradford, the exclusion of it was immaterial, and not reversible error.
Justice Neil concures in all the conclusions of this opinion, and Justice McAlisteR concurs in all the conclusions concerning and affecting Duncan Bl Cooper, and therefore the judgment of the lower court is affirmed as to Duncan B. Cooper. But Justice McAlisteh does not concur with this opinion in overruling and disallowing the thirteenth, fourteenth, and fifteenth assignments
Judge BeaRd will present the views of Judge Bell and himself, and those of Judge McAlister, so far as he agrees with them.
Beard delivered the following opinion:
About 4 o’clock in the afternoon of Monday, November 9, 1908, Ex-Senator Edward W. Car-mack, in an encounter occurring on Seventh Avenue North, in the city of Nashville, was shot to death with a pistol in the- hand of Robin Cooper, who at the' time •was in' the company of his father, D. B. Cooper. Soon thereafter an indictment was found, containing in substance and effect two counts, in the first of which these two persons, together with John D. Sharp, were charged with the commission of murder in the first degree upon the person of the deceased, and in the second it was alleged that the “said Sharp . . . unlawfully, fel-oniously, willfully, deliberately, premeditatedly, maliciously, did move, incite, counsel, hire, command, and procure the said D. Bi. Cooper and Robin Cooper” “to do and commit” this murder. Upon this indictment all these parties were brought to the bar of the court, where, being arraigned and pleading not guilty, a trial was had, beginning on the 20th of January, 1909, and covering a period of practically two .months. As the result of this trial the jury returned
Among these alleged errors, the one most earnestly pressed upon the' attention of the court is “that the verdict is not warranted by the evidence.”
However the rule may he in the supreme court of the United States, and in-many of the courts of last resort in the several States, as to the conclusiveness upon controverted facts of the verdict of a jury in a criminal case, it is otherwise in this State. Prom an early day, in the history of our jurisprudence it has been consis* tently held that while a verdict, approved by the trial judge in such a cause, is entitled to great weight, yet it is not,. conclusive, aud . this court, out of tenderness for human life and liberty, will for itself search the record, and, if it be found that there is a clear preponderance of evidence against the verdict, will reverse the judgment of the court below; but the burden of showing such preponderance rests upon the party ap^ pealing. Leake v. State, 16 Humph., 145; Hill v. State, 3 Heisk., 317; Robertson v. State, 4 Lea, 425.
This record shows the theory of the State in the .trial court to have been that the killing of Senator Carmack was the result of a conspiracy to take his life, entered
Upon this hypothesis it is insisted, as a matter of law, that the father being the aggressor, cannot avail himself of the plea of self-defense, and, therefore, that such plea is not available to Robin Cooper, the son, who thus, it is assumed, unlawfully interposed. For this proposition sections 332 and 521 of Wharton on Homicide (3d Eld.) are cited as authority. In the first of these sections the author lays down the law as follows:
“The doctrine of freedom from fault in bringing on a difficulty as a condition precedent to a plea of self-defense applies with equal force to a case in which one person interferes in a difficulty between two others in behalf of or to protect one of them; and, generally speaking, a person who does this will not be allowed the bené-fit of the plea of self-defense, unless such plea would have been available to the person whose part he took, in*155 case he himself had done the hilling, since the person interfering is affected by the principle that the party bringing on the difficulty, cannot take advantage of his own Avrong. . . . Thus, if a son fight in defense of his father, his act in doing so will receive the same construction as that of the father and if the latter was the aggressor in bringing on the difficulty, and could not plead self-defense, the same rule applies to the son. And the son cannot rely upon his own freedom of fault in bringing on the difficulty, as a defense, where he knew the father had provoked the attack. Both must have been without'fault in bringing it on.”
In section 521 is found the following statement of the same principle:
“The general rule, as ordinarily stated, is that a brother or other relative, assisting another in resisting a wrongful act directed against the latter, can use no more force than the person he assists would be entitled to use, and that interference to protect a relative is not justified where the relative was the aggressor in the difficulty. A person has a right to use violence in defense of another only when the imperiled person would have been justified in using it in his own defense. Both must have been free from fault in bringing on the difficulty.”
On the other hand, the theory of the plaintiffs in error Avas, and is, that they had no motive or reason to kill Senator Carmack; that their meeting with him on the occasion in question, in a sense, was accidental, and having met him, Avithout any attack upon him by either of these parties, he made a deadly assault upon Robin
To a correct understanding and just determination of the-issue presented in the court below and here by these two hypotheses, as well as for other reasons which will later appear, we deem it proper, if not essential, to consider to some extent, the earlier as well as the later relations existing between Senator Carmack and Col. Cooper, and. especially the conduct of these two, as well as that, of Robin Cooper, within the twenty-four hours preceding the fatal meeting. The record discloses that Col. Cooper and Senator C'armack, until about 4 years prior to the homicide, had been close and confidential friends. When the Senator was quite a young man, Col. Cooper, who then controlled the-Nashville American, a daily newspaper, brought him to Nashville and placed him in charge as its editor. This place he retained for several years, when he abandoned it to become the editor in chief of the Commercial Appeal, published in Memphis, in this State. In the card announcing the severance , of his relations with the American, and the taking up of his new work, among other things, he said; “I desire especially to acknowledge the debt I owe and the regard I feel toward Col D. B. Cooper, under whose management I first became connected with the American and with journalism. It is a pleasure at this time that I cannot recall one word, act, or incident which has marred the harmony of our relations during the whole, time, of our, intimate association.” . .
The pleasant relations indicated by this card continued between these gentlemen until Mr. Carmack became a
In the course of the public debates between Mmself and Gov. Patterson during the canvass, the record shows' that Mr. -Carmack frequently referred to Col. Cooper by-' name, first, as the latter testified, “in a spirit of ridicule,” then with “veiled insinuations of corruption.” Upon the termination of this canvass, Mr. Carmack became the editor of the Tennessean, a leading daily newspaper, published in Nashville, in this State. In the editorial columns of that paper frequent use of Col. Cooper’s name was made, and-in a way which was evidently both galling and exasperating to him. Perhaps there has been-no man in public life in Tennessee, for certainly a-half century, who was more brilliant in intellect and-more eloquent in speech or in the editorial chair, one-more the master of vigorous English, than Mr. Car-mack, and when so disposed -he was equally trenchant with both tongue and pen. It was the frequent use of Col. Cooper’s name, by this greatly gifted man, that at'
In the issue of the 8th of November, 1908, of the Tennessean, there appeared an article in the editorial columns, entitled “Across the Muddy Chasm,” in which ironical reference was made to Col. Cooper and recent work attributed to him, in the character of “peacemaker.” It is very evident that by this time the latter became angered to a degree of intense indignation. It happened that on the evening of that day he met Mr. E. B. Craig at the Tulane Hotel in Nashville, by previous arrangement, to talk with him on a matter of business. The meeting occurred as agreed upon, and when the business which brought them together was dismissed, the subject of these newspaper references to Col. Cooper was discussed. Mr. Craig testifies as follows: “Col. Cooper commenced speaking of some editorial in the Tennessean in which his name was used. I soon discovered that Col. Cooper was very much agitated, very angry, and very threatening. He stated that his name must not appear in the Tennessean again. In that connection he said: ‘I am an old man, a private citizen, and it makes little difference whether I go or not. My name must not apear in the Tennessean aga.in¿’ I discovered, as I stated before, that Col. Cooper was very much agitated, and he was very violent in his denunciation of Senator Carmack. . . He denounced him as an ingrate, a scoundrel and soon said that if this article again appeared or his name appeared again in the Tennessean that he or Senator Carmack must die.”
“Q. What, if anything, did yon do, and why?
“A. Well, I stated to Ool. Cooper that I regretted that such a condition existed, and I would like, if he did not object, of seeing — I would like to see if I could do anything to relieve the situation. I think Col. Cooper asked me what. And my reply — -
“Q. Asked yon what ?
“A. Asked me' what meaning I had in my mind and my reply was ‘Nothing- only a short conference with Mr. Carmack himself.’ ...
“Q. What, if anything, did he say in the conversation about any note he had?
“A. In the conversation, exactly at what point I do not remember, sir, he stated that he had written Senator Carmack a note that could not be misunderstood.”
Mr.' Craig further testified that he went, as he had proposed, to the office of the Tennessean, where he had a conference with Mr. Carmack, and communicated to him, in substance, the conversation he had just had with Col. Cooper. The witness was not permitted to state what Mr. Carmack said in reply, but he testified that he returned to the Tulane Hotel and found Col. Cooper there, reported to him that he “could accomplish nothing,” and that he (Cooper) said, “Then, by G-d tMs note goes.”
The note referred, to, according to Mr. Craig, was the one mentioned by Col. Cooper in their “previous conversation.”-
In regard to the first interview between himself and Mr. Craig, when the latter proposed to see Mr. Carmack, with the view of putting “matters in better shape,” the witness was asked if he demanded an apology “from Senator Carmack for any of the past denunciations he had made,”'and his answer was, “I specifically disclaimed demanding any. ... I told him specifically I demanded no apology; that I wanted no further personal relations with him at all. I simply wanted this matter to cease, that they must cease, and in substance I stated that, and
With regard to the note mentioned by Mr. Oraig in his evidence, the following questions were asked the witness, and answers to the same were made by him:
“Q. When Ciraig brought you the information that Oarmack was in an ugly humor, or mood, and. he could do nothing, . . . what did you say, if anything?
• “A. I told him just what I said’a moment ago, that it had to cease.
“Q. I understand, but did you say anything further about the note?
“A. Oh, yes; . . .. the note was spoken of in the first interview between Mr. Oraig and myself, that I had prepared a note that I was going to send him, and that was one of the reasons why Oraig proposed to interview and see if matters couldn’t be put on a better basis, and — ■
“Q. You have stated—
“A. Well, sir—
“O- I beg your pardon.
“A. Well, I was going on to state that that note came up in the second interview, do you understand? That alone referred to again, that if it was not stopped I would send this note. . . .
*162 “Q. Was that not addressed to Senator Oarmack about these denunciations?
‘“A. It was a note addressed to Senator Oarmack about these editorials: yes¡, sir.”
It will be recalled that Mr. Craig testified that in their first interview Col. Cooper had said, “if his name appeared again in the Tennessean, that he or Senator Oar-mack must die.” In the course of his cross-examination Col. Cooper denied the making of this statement, and repeats that what hie did say was “that if his name appeared in the paper again the town would not be big enough to hold both of them.” His explanation of this threat was that if the use of his name was not discontinued he purposed to expose the private and personal life of Seuator Carmack, and that after this was done the town would not “have been Mg enough to hold the two.”
It is argued with much force and plausibility that the statement of Col. Cooper as to what he uttered in the way of a threat with regard to Mr. Carmack is entitled to much credence, by reason of the fact that, according' to Mr. Craig, as has already been seen, upon reporting to Col. Cooper that nothing could be accomplished, instead of replying, as would have been most natural, if it had been he had said in the earlier interview, that if the use of his name was not discontinued “he or Senator Car-mack must die,” his reply was, according to the testimony of both. “Then this note goes,” striking his hand at the same time upon his person, as if to indicate that he then had with him the note referred to. It may be said, in passing, that the note referred to, it seems, was pre
We regard it, however, as immaterial as to whether Mr. Craig or Col. Cooper be right as to the exact character of the threat made in their first interview. There can be no doubt that Mr. Carmack understood, from what Mr. Craig said to him with regard to the violent mood of Col. Cooper, that in the event of the use of Col. Cooper’s name again in the editorial columns of that paper, he might expect a personal attack. So it- was that, a short time after Mr. Craig left on Sunday night, Mr. Carmack borrowed a pistol from a friend to defend himself in case of such a contingency.
Unfortunately for all these parties, there appeared in the Monday morning’s issue of the. Tennessem another editorial, which Col. Cooper evidently regarded as an open defiance of him. Upon reading it he went immediately, and in a state of great anger, to the office of his son, Eobin Cooper, reaching there about 9 a. m. At that time the son was living with his uncle, Mr. J. C. Bradford, about three miles from the city, and since he began to practice law, in 1902 or 1903, had his office with Mr. Bradford, a leading member of the bar of Nashville. It is evident from the record that intimate relations existed between the father and the son, and that the latter entertained for the father the most tender filial affection. It was not unnatural, therefore, that Col. Cooper should have gone, first of all, to his son to-talk with him about this matter, which had assumed so grave a condi
The record further discloses that Mr. Bradford’s law office consisted of three rooms, opening- into each other. One of these was occupied by him as a private office, the one adoining by Miss Daisy Lee, his stenographer, and the third by Robin Cooper. About 9 o’clock Monday morning the latter reached his office, and, as has just been stated, soon afterwards his father came and joined him. Evidently the father was greatly excited, and, no doubt, in the course of the conversation which ensued, in speaking of Mr. Carmack, as Miss Lee (who was a witness for the State) testified, he did say that “he (Mr. Carmack) has no right to use my name,” and “I have a right to protect myself.”
Before it was made known to him in this interview, it is apparent that Robin was ignorant of the meeting between his father and Mr. Craig, and of the message which the latter had borne to Mr. Carmack with the consent of Col. Cooper. Leaving out the questions addressed to the witness, and giving Robin’s testimony, as to what was then said and done, in a narrative form, it is as follows: “My father stated to me that he was afraid that he would have trouble with Mr. Carmack, and I asked him why. . . . He stated to me in substance that Mr. Carmack, -in his paper, . . . had been publishing-editorials day after day attacking his character, and, as
That the son was alarmed by this conversation with his father, and set about at once seeking to save him from a possible street meeting with Mr. Carmack, we are satisfied. That this alarm was occasioned by the belief that his father, rather than Mr. Carmack, would likely be the victim of a hostile meeting between the two, we think is beyond question. The disparity in age and physical condition between them would naturally, in the son, have been the occasion of great concern. His father, a man sixty-five years of age, with a crippled right hand, might well have seemed to this son no match in a street encounter with Mr. Carmack, then in the full vigor of physical, as well as intellectual, manhood. Robin Cooper called his sister, Mrs. Dr. Lucius Burch, over the telephone, and spoke to her with regard to the conversation that he had just had with his father, and asked her to try and reach his father over the telephone, and to keep him off the street. Foregoing an engagement which he had to meet Maj. W. O. Vertrees at the chancery court room, for the purpose of tryifig a cause, in which they were engaged as adversary counsel, he started in search of his father, his alarm growing with continued thought over the critical relations then existing between Mr. Carmack and Col. Cooper, he went to the Maxwell House, in search of the latter, then to the Tulane Hotel, where the State Democratic executive
In this conversation at the Maxwell, the witness states that his father told him that he would not' go on the streets, but would stay at the Maxwell House until the hour arrived for this meeting.
Evidently this conversation relieved the son of the tension which had followed his interview with his father at his office in the morning, for he went at once from the Maxwell House to the chancery court and entered upon the trial of the cause, which has been already referred to. He was there engaged until about 2 o’clock and left the courtroom about that hour, and lunched with Maj. Ver-trees at the Utopia Hotel. As additional evidence that this young man regarded the danger as having been averted, he took from the courtroom, when he left it, the papers in the cause which he had been trying to his office, intending , to work with them that night in the preparation of his brief. The search for his father, his engagement at the chancery court room,'and his lunch at the Utopia, had practically taken up all the time between
At, or about, 3 o’clock, according to his engagement, Col. Cooper came and entered the private office of Mr. Bradford, and these two were shortly after joined by Gen. Tully Brown. Within a few minutes, Robin Cooper, passing from his office through the room of the stenographer, entered that in which these three parties had their meeting.
■ In the course of her testimony, Miss Lee has stated that after the meeting between Col. Cooper and his son, occurring, as already seen, soon after the latter had entered his office, in the early hours of the morning, Col. Cooper returned between 10:30. and 11 o’clock a. m., and had another with Robin in Mr. Bradford’s office. She
' But, independent of the testimony of Robin Cooper as to his own movements, the record, we think, otherwise shows that beyond all question Miss Lee was in error as to this second interview between Col. Cooper and his son. It will be remembered that Miss Lee fixed it as occurring between 10:80 and 11 a. m. When Col. Cooper left the office of Robin Cooper, a little after 9 a. m., he testified that he went at once to the livery stable of Sandy Brown, for the purpose of purchasing a horse for his son-in-law, Mr. Chas. N. Burch, of Memphis. Mr. Brown fixed this visit to his stable as having been made between 9 :15 and 91:30 o’clock, a. m. He states that after Col. Cooper arrived, the horse, which he had in view to purchase, ■ was brought out and saddled, and then was ridden up and down the street in front of the livery stable, that he was then unsaddled and taken to a blacksmith shop in the near neighborhood and shod, and that from 20 to 30 minutes were consumed in shoeing. After this had been done the animal was harnessed and hitched to a buggy, and that Col. Cooper and Dr. Brown, the son
As has already been stated, Robin Cooper testified that immediately after his father left Mr. Bradford’s office, Monday morning, in his anxiety to prevent a meeting between his father and Mr. Carmack, he telephoned his
Evidently regarding all immediate danger as averted, and the difficulty in process of honorable adjustment, Gov. Patterson left the Maxwell House to go to the Mansion, as it was then about his lunch hour. At his suggestion, Robin Cooper accompanied him a part of his way.
Mr. Bradford also testified as to this meeting. He states “that upon reaching the Maxwell House, in answer to the telephonic message sent,” “I learned that the subject-matter of discussion was the sending of a note by Col. Cooper to Senator Carmack, protesting against the
It is not improper to set out, at this place, the note which had been prepared by Col. Cooper, though unsigned by him, which was taken by Mr. Bradford when he left the conference. It is as follows:
“Nashville, Tennessee, Nov. 91,1908.
“E. W. Carmack, City — -Sir: I am a private citizen. I am neither an office holder, nor an office seeker. I have violated no law, and, consequently, am not' a legtimate*175 subject of public attack or discussion. For many months, on the stump and through newspapers, you have seen fit to offensively use my name and vent your malignity. You have no more right in this manner to annoy, insult, or, injure me than you would have to do so to my face. I notify you that the use of my name in your paper must cease.”
The record shows that Ool. Cooper, having an engagement with a lady friend, and in compliance with a suggestion made to him by Gov. Patterson, remained at the Maxwell House in her company until 3 o’clock, when, according to agreement, he went to the office of Mr. Bradford. Soon after getting there, Gen. Tully Brown came in. In a little while Robin Cooper joined these three gentlemen in Mr. Bradford’s room, where a conference took place, which lasted from fifteen to thirty minutes. The result of this was, according to the testimony of all these gentlemen, that an agreement was reached that Col. Cooper should not send the note, but would leave the whole matter in the hands of Mr. Bradford with a view to its settlement. This being arranged, Col. Cooper remained a few minutes in the room, and the conversation that ensued was upon indifferent subjects. In a short while he left, as is testified to by Mr. Bradford ■and Gen. Brown. No doubt satisfied that the danger was passed, Mr. Bradford said to Robin Cooper that he need not worry any more with regard to it. Thus assurred, Robin returned to his own room. Gen Brown remained with Mr. Bradford, in the latter’s office. The conversation between these two gentlemen, which followed, was
So, notwithstanding the fact that Col. Cooper armed himself on Sunday night, in anticipation of a possible difficulty with Mr. Carmack, in the event they met, and that Robin Cooper secured a pistol, during the morning of Monday, to protect his father, if necessary, yet, at 3 o’clock, when this conference broke up, it was with the understanding that no hostile demonstration would be made by C'ol. Cooper and that bloodshed would be avoided. This we are satisfied was confidently believed by these parties, with whom he had been in counsel. What occurred, -upon what Ave regard as indisputable testimony, repels the suggestion made by the state in the trial court that there was then, or had been, a conspiracy to murder Mr. Carmack. On the contrary, the evidence points, inevitably, as we think, to the conclusion that, up to this point, the friends of Col. Cooper, as well as his son, Robin Cooper, had set in motion every influence of which they had command to bring about a peaceful solution of the trouble between himself and Mr. Carmack, and believed that this result would be reached. The conduct and conversation of these parties we regard as irreconcilable with any other view.
Returning now to the record, as to the movements of Col. and Robin Cooper and their purpose as there 'disclosed, it will be recalled that, soon after the agreement had been reached that the note should not be sent, Col. Cooper left Mr. Bradford’s office. Mr. Bradford had communicated with Gov. Patterson, who was then at the
Apprised of this engagement, and seeing his father in the act of going to meet it, the son proposed to bear him company. Without absolutely declining to permit this, yet Col. Cooper did suggest that there was no necessity of his doing so, in view of the result of the conference which had just terminated. Robin Cooper, no doubt realizing that an agreement on his father’s part to adjust the
It happened that Miss Daisy Lee, the stenographer of Mr. Bradford, who, as has been seen, was a witness for the State, and Mrs. Blake, her friend, were in the room of the former when these two passed through, on their way to the meeting with the governor. Miss Lee states that as they Avent out she noticed on Robin’s face “an expression” she had “never seen before.” “It seemed,” according to this witness, “almost spotted over [with] some big excitement.” It is evident that this curious facial phenomenon wras not observed by Mrs. Blake, who knew him well, and saw him often, as she was a
Returning now to the movements of Ool. and Robin Cooper, as shown in the record, we find that on reaching Church street, after leaving Mr. Bradford’s office, they chose the “least frequented route” to the Executive Mansion. -They went west on Church to Fourth avenue, and, halting only a moment for Robin to take a “glass of coca-cola,” they proceeded! north on this avenue to the Arcade, and, turning west, they went until they came upon John D. Sharp, engaged in a business conversation with one Roscoe Mathews about midway the Arcade. Mr. Sharp was a strong friend of Gov. Patterson, both politically and otherwise. They exchanged salutations with him, and Col. Cooper, telling him he was on his way to see the Governor, invited Mr. Sharp to accompany him.
That this meeting was purely accidental, we have no doubt. Sharp had been out of Nashville for several days,
After a short delay at the point of this meeting, Col. Cooper and Robin, joined now by Mr. Sharp, continued their way through the Arcade to Fifth avenue, and, turning north, walked to Union street, and then west on this street to its intersection with Seventh avenue. From Sixth avenue to Seventh avenue there is a considerable grade. In ascending it Robin Cooper and Mr. Sharp were in front, so that when the intersection, referred to, was reached by them, Col. Cooper, who, on account of his age and comparative corpulence, walked more slowly, was some little distance behind. Happening to look south, Robin Cooper saw Mr. Carmack on the other side of Seventh avenue, walking north from Church street, and, according to the testimony of Sharp and himself, turned to Sharp and said, “There goes Senator Carmack; dont let papa see him,” and immediately called to his father, who was about twenty-five feet behind, saying, “Let’s hurry up.” To this his father replied, “Well, wait a minute.” When Col. Cooper reached the corner on which Robin and Sharp stood, this being the southeast corner of Union and Seventh avenue, the three turned toward the Governor’s Mansion. Robin took hold of his father’s arm, in order to hurry him. When nearly across Union Street, his father, his at
As stated in the outset, the theory of the State, in the trial court strenuously pressed upon the jury, and based on the indictment, was that the Coopers and Sharp' had feloniously conspired to murder Senator Carmack. The trial judge, in his charge, distinctly tells the jury that the insistence of the State was that “E. ,W. Carmack ... came to his death as the result of a conspiracy entered into between the defendants D. B. Cooper, Robin Cooper, and John D. Sharp to take the life .of him, the said E. W. Carmack, and that the plan entered into by and between the said defendants to take the life of the said E. W. Carmack was done and entered into with coolness and deliberation and special malice toward him, the said E. W. Carmack, on the part of the
Two matters of evidence, introduced by the State as tending to support this insistence, will now be mentioned. One of these is found in the testimony of Johnnie Tindall, and the other in that of Mr. Carey Polk.
The first of these two witnesses, Johnnie Tindall, was a young newsboy, about 12 years old, who had come to know Robin Cooper by selling him newspapers, and had also known Col. Cooper for about three months before the day of the tragedy. He testified that in the afternoon of November 9 th he was on the corner of Church and Cherry streets, plying his trade, when the two Coopers turned fro.m the former into the latter street, and as they passed him, he heard the father say to the son, “We will get him,” or, “We will catch him.” He was not certain which expression was used. He further .testified that about a half hour afterward he heard the men on the street talking about the killing of Mr. Carmack.
It is positively denied by both Col. Cooper and Robin that this remarle was made, or any other that was at all like it, and the whole body of the proof sustains this denial. The remark was idle and meaningless, unless it referred to Senator Carmack, and indicated a step in the alleged conspiracy against his life. This cannot be true, as we are satisfied, upon the evidence already detailed, that at the moment it is said this remark was
Mr. Carey Folk testified that a little after 4 o’clock in the afternoon of November 9th, he passed west up the north side of Union street, and that he observed Col. Cooper on the opposite side going in the same direction; that he was walking more slowly than the witness; that he observed at the same time, standing on the southeast corner of Union street and Seventh avenue, two persons, whom he did not then know, but afterward recognized as Robin Cooper and John D. Sharp; that these two seemed to he engaged in conversation, though as to this the witness could not tell; that when Col. Cooper was still about twenty-five feet away from the two persons on the corner, he heard one of them, whom he later identified as Robin Cooper, ask Col. Cooper a question, which was “exactly, or in substance,” this, “Are you going up this way?” indicating, as the witness remembered by a movement of his hand, “Up Seventh Avenue North, toward the Capitol;” that to this question (to use the language of the witness) Col. Cooper replied, “exactly or in substance,” “No, I will wait awhile yet;” that witness passed on, and did not see these parties move from their position on the corner.
At the time this was' transpiring, this witness, according to his statement, was “walking rapidly” on his way to the Carnegie Library, where he had “business,” with his mind “very intent” on this matter of business,
The version given by the witness of what was said at that time is flatly denied by the two Coopers and Mr. Sharp. Their testimony as to this matter, in substance and effect, is that Robin said to his father, who had not reached the corner, “Let’s hurry up, father,” and that the father’s reply was, “Wait a minute; I will be there.”
It is insisted, with much force of argument, that the statement of what did-occur at that time, as given by these witnesses, under well-settled rules of evidence, and in the light of this record, must be accepted as the truth.
It is urged for the plaintiffs in error that as Mr. Polk, at the time, had no reason to attach to what was said by' these parties any significance, or to give to their words any particular attention, giving him full credit for honesty, yet his testimony on this point is of little probative force, especially, in view of his admission that he was walking rapidly, with his mind absorbed with his own business.
There is no doubt that testimony in which one undertakes to repeat what another has said is not regarded by the authorities as of the greatest value, and is correspondingly decreased in reliability where it appears that the witness who undertakes its repetition concedes that there was nothing in the occasion or the circum
In addition, it is insisted that the version of the plaintiffs in error of what was said is the more reasonable. Robin and Sharp both testify that, on discovering Mr. Carmack, Robin called to his father, “Let’s hurry up,” and that this was consistent with his conduct and purpose throughout the day, in that “he was urging his father on” lest the meeting, of which he stood in fear and had sought to avoid, might then take place, and that Col. Cooper’s reply, coming from him as he was advancing slowly up the incline, “Wait a minute,” was equally natural.
The inference evidently drawn by the State, from the reply attributed, “in substance,” by Mr. Folk to Col. Cooper, “No, I will wait awhile yet,” was that it indicated a purpose to wait for Senator Carmack. But the evidence negatives the idea that the Coopers knew where Mr. Carmack lived, or had any reason to believe that he would be on Seventh avenue at that time. The record shows that the route taken by the Coopers, in order to reach the Governor’s Mansion, was chosen because it was the “less' frequented,” and we are satisfied it was an accident that they and Mr. Carmack were on the avenue at the same hour that afternoon — a fact as unexpected as it was tragical in its consequences.
Taking the whole record, we have no hesitancy in saying, that there was no evidence which pointed to J. D.
It is argued that the testimony of Mr. Craig, with regard to what was said and'done at their Sunday night interviews, strongly supports this theory.
It will be recalled that Mr. Craig had two interviews on that occasion with Col. Cooper — the first leading to a visit by him to Mr. Carmack with a view of arranging, if possible, “to relieve the situation,” and the second, in which he reported that his effort in this matter had been unsuccessful. The versions of what was said and done
It is .insisted by the counsel of plaintiff in error D. B. Cooper that his version of what was then said is indirectly, but none the less strongly, corroborated by Mr. Craig, in his testimony .as to the second interview, in which he repeated his ineffectual effort “to relieve the situation” between these parties. Upon receiving this information, in Ms then state of mind, it is said-that it would have been natural for him to have repeated this threat, if theretofore made; but instead, according to Mr. Craig, Ool. Cooper, striking á pocket in the breash of his coat, said, “Then, by God, this note goes;” and this, in effect, is what Col. Cooper testifies he did say.
Further, it is urged by the State that arming himself, after this interview, followed by the angry and denuncia-tory conversation which he had'with his son Robin in
That 'Col. Cooper intended, as threatened, to send, a note, prepared by him Sunday afternoon in the Wautaga Club, of which the one already set out, we are satisfied, is a copy, modified only by the omission of the words, “and thus far you have not had the temerity to do this,” (which in the original concluded the next to the last sentence to the close made by him after his interview with Mrs. Burch, on Monday morning), we see no reason to doubt. That he armed himself with a pistol, secured from a friend, after parting from Mr. Craig, with the belief that the sending of this note would probably result in a hostile meeting between himself and Mr. Carmack, we have as little doubt. That he still had the .purpose to send the note, with the same idea as to its effect, when he had his interview with his son at 9 a. m., and. with his daughter, Mrs. Burch, at 11 a. m,, we are satisfied. But the counsel for the plaintiff in error insists that this purpose had been abandoned and the whole matter turned over to Mr. Bradford, for adjustment, if possible, at the conference occurring at 3 p. m. in Mr. Bradford’s office. As we have already said, in .dealing with the theory of a conspiracy, we think that the record-incon-. trovertibly shows that this agreement had been reached, and in good faith, by all the parties concerned. So, if it be, as insisted by the State, that “Col. Cooper, having threatened the life of Mr. Carmack,' armed himself and went out of his way to find him,” then it is to be found in the facts beginning with his crossing Seventh
As to the inducing cause of this movement of Col. Cooper, he testifies that on discovering Mr. Carmack “the impulse, formed at the moment, was that I would go and remove all of this condition that was distressing my friends and worrying them to death, and worrying my children and me, and I would go over and have a direct plain talk with Mr. Carmack. He had known me well, and I had known him well. I went over to have that' talk directly with him, to protect against this constant attack upon me, and see if it couldn’t he stopped.” He further testified as follows: “Well, I saw Senator Carmack coming up, as I told you, upon the west side of Seventh avenue, going north. As I started I turned and went across, and my impulse was to go right across the street and wait for him. It flashed across by mind that this might bear significance not intended, and that I would walk naturally down the street meeting him.”
While in view of the estrangement between Mr. Car-mack and Col. Cooper, and especially of the abortive effort of Mr. Craig to bring about a cessation! of Mr. Carmack’s editorial references to him, it was no doubt exceedingly unwise for him to thus seek to intercept Mr. Carmack for an interview, but it cannot be said to have been altogether unnatural, considering the former intimate personal relations between the two, severed as they were only by political differences. At any rate, his purpose, if it was as avowed by him, was not criminal, though there can be but little doubt that Mr. Carmack,
Reaching the north side of the avenne, Col. Cooper walked south, while Mr. Carmack was moving to the north, and they came approximately together at a point about 109 feet south of the southeast corner of Union-street and Seventh avenue.
Leaving these two for a moment, we will now turn our attention to Robin Cooper. As has been stated already, soon after his father pulled away from him, in disregard of his earnest appeal, and started across the avenue, the son followed. In regard to this action of his, questions were put to and answered by him, as follows :
“Q. Did you follow him immediately?
“A. No; I didn’t know what to do. I hesitated. I didn’t know whether I ought to go or not. When he had gotten twenty or thirty feet away — some little distance —I thought that I ought to go with him, and I followed.
“Q. Why is it that you thought you ought to go with him?
“A. I knew the message papa sent to Senator Car-mack, and I was afraid he would attack him — would resent it.
“Q. Afraid who would attack him — who do you mean by lie’ and ‘him?’
“A. I was afraid that Senator Carmack would attack papa.
*191 “Q. Well, what did you understand? Were you afraid at that time that your father would attack Senator Car-mack?
“A. Not in the least.”
Later, along the same line, in the course of his examination the witness stated that after his father “had gotten about half way across the street I felt that it was my duty, as he was my father, and I believed that he was unable to protect himself, if he should he attacked, to go with him and he there if Senator Carmack should attack him.” .
It is true that Col. Cooper testified that he said to .Robin, as he was moving away from him, in answer to the latter’s protest, that he should not cross the avenue, that his (the father’s) only purpose was to talk to Mr. Carmack and protest against the further offensive use of his name editorially, and his son testified that he believed this to be true, still it is not unnatural that this did not'allay the fears of the son. That this apprehen-. sion was real, and not simulated, we are satisfied. The son knew of the Craig interview with Mr. Carmack and its result. He also knew that Mr. Carmack was ignorant of the understanding looking to a peaceful adjustment of the differences between himself and Col. Cooper, reached only a few minutes before at the conference in Mr. Bradford’s office. Having this knowledge, he could hardly be without serious fear as to the result of this meeting, which his father was thus seeking. Under the influence of fear he had been laboring for hours to prevent that which now was imminent. His apprehension would nec
The parties met, and the killing of Mr. Carmack occurred, at, or near, two cedar poles standing just inside of the curb of the sidewalk, on the west side of Seventh avenue, and at a point about opposite the south boundary line of the Polk Plats property. The poles just mentioned stood on the same parallel line with the curb, which, with the avenue, ran north and south. Up to a point about seven feet above the pavement they, stood about a foot apart. The north pole was eight inches, and the south pole eleven inches, in diameter.
As to the tragedy itself, the State relies, to sustain its contention as to its immediate facts., on the testimony of Mrs. Charles Eastman, in whose presence it occurred. The record shows this witness to be the wife of a citizen of Nashville of high character, and herself to be a lady of admitted intelligence and refinement. She states that she and a kinsman, who was aged and infirm, were walking very slowly south, on the west side of Seventh avenue, and that, having passed a little south of the boundary line of the Polk Plats property, and in the immediate neighborhood of the two poles referred to, they met Senator Carmack, who gave her a smile of recognition, and then, stopping in front,' but slightly west, of her, and lifting his hat from his head with his right hand, while holding a cigar between two of the fingers of the left
She states that, seeing the pistol of Mr. Carmack, and alarmed “by that voice,” she became “panicked,” and jumped a distance of five or six or seven feet into a gateway of the- Shanklin residence, which lay' immediately ■ south of and adjoining the Polk Plats property. ' :
She further testified that as Mr. Carmack >drew his pistol he had hold of it by the" barrel, • “his thumb crumpled under the barrel,” and that, as she jumped from her position near the center of the pavement into the gateway, the first shot was fired “from her rear-as she stood on the pavement;” that, turning after getting inside the gate, she saw the party from whom the voice
Mrs. Eastman stated that she did not see a pistol in Ool. Cooper’s hand, but he had his right arm extended in the attitude of one going to fire a pistol. She admits that she was greatly agitated by this terrible tragedy, and that, turning to Ool. Cooper, she denounced him “as brutal and a murderer, as having taken advantage of her presence, and killed Mr. Oarmack without giving him a single chance.” To this denunciation, she says, Ool. Cooper made no reply, though he was near and looking at her, while she was thus denouncing him.
It is further insisted that much of her testimony consisted of mere impressions, as this tragedy passed with lightning-like rapidity before.her eyes, rather than of actual facts, forming parts of the same. As examples of this, attention is called to her' statement as to the first shot, which is as follows: “As I jumped into the gate, as I made this leap and whirled into the gate — the pistol — the firing began; I think the first shot began. I had a flinching at the time. I believe it was from the rear as I had stood on the pavement.” And, further, her “opinion” was that Mr. Carmack, whose hand was “crumpled up under the barrel of his pistol” when he drew it from his pocket, at the time the firing began, never had time “to straighten it out until he was shot.”
In further confirmation of this contention of the counsel of the plaintiffs in error, stress is land on the fact that though only three persons were engaged in this scene, occurring within a narrow space of time and place, yet Mrs. Eastman did not observe that Robin Cooper was one of the three,- but “thought he was a passer-by” —-“like herself caught there”- — when in fact he was, as is contended by the State, one of the principal actors in the scene.
“Q. The question is, considering that Ool. Cooper was where he was, when you heard the voice and when you saw him, did or not that movement to the east, after Mr. Carmack had drawn his pistol, put Mr. Eastman” (her aged companion, who was outside and east of the witness) “exactly between him and Col. Cooper?
“A. That is why I say I will have to make an explanation. I cannot answer that in a monosyllabic way. I will tell you that Mr. Carmack— I jumped into this gate in an instant of time. I made my .appeal—
“Q. Well, now?
“A. Wait; I must answer.
“Q. Go ahead.
“A. Then Mr. Carmack during that time was making a movement outward. I imagine he hadn’t stepped immediately in front of Mr. Eastman, because the shots were immediately fired, and at that time I thought Col. Cooper was firing, though afterward I knew they were halfway back of Mr. Carmack, and that Mr. Carmack was going between Mr. Eastman and Mr. Robin. Cooper.”
In view of these matters, and of her statement that she did not see a pistol in the hand of either of the Coopers, and was not able to state that either fired a shot, but evidently believed that Mr. Carmack was mortally wounded, before he had “straightened” his pistol and without discharging it, the counsel for plaintiffs in
Turning now to the evidence of Col. Cooper as to the recounter, we find the following:
“We met at a point near the posts, that have been so often described. Ahead of me were two people that I did not know at the moment, and never did know one of them except by hearsay. And as he (Mr. Carmack) came by he spoke to these people. He was on the inside next the lot, not next the curbing — on the inside, between those people and the lot. Mrs. Eastman, who it turned out afterwards to be — I didn’t know at the moment — she was also upon that side as relating to her companion, the old man who was with her. About the time she passed, just in the act of passing, I will say, as nearly as I can, directly in line with them, I spoke to him, ‘Mr. Carmack,’ and he threw his head up and in an instant he drew the pistol. That is—
“Q. What was his movement when you called his name?
“A. Just as I have described; he threw his head up as though he hadn’t seen me, and then the—
*199 “Q. What was the movement of his person? Did he keep his feet still, or did he move?
“A. No; as he drew the pistol, in the act of drawing it, it was simultaneous, the drawing and the act;, and begot between Mrs. Eastman and myself.
“Q. What do you mean?
“A. What say, sir?
“Q. I didn’t quite understand?
“A. .Well, he passed in front of Mrs. Eastman, having her between he and I, and.he passed then across Mrs. Eastman and the man who was with her — it turned out to he Mr. -Eastman — going towards the curb.
“Q. How was he facing as he made that movement?
“A. Facing me all the while, going more sideways, diagonally a little. We were a little north of the. post,, as it turned out.
“Q. What was the width of the sidewalk there?
“A. Well, the width I have seen on the diagram here and on the diagram my counsel have shown me, about 9 feet. I didn’t know and couldn’t have guessed — 10 or 12 feet.
“Q. Well, as he was a little past the center of the sidewalk, the center of it would be 4% feet from the curbing, wouldn’t it?
“A. Yes, sir.
“Q. And if he was a little past that, he might be 5. or 6 feet from the curbing. What do you estimate, in feet, he was from the curbing when you called his name?
“A. I would say that he was 5 or 6 feet, if the curbing,*200 if the street, the pavement, is 9 feet wide; yes, if that is the accurate- measurement of it.
“Q. Well?
“A. And he had his pistol, had it in his hand during that passage. He was between this man and woman,Mrs. Eastman and Mr. Eastman, and myself, until the movement was—
“Q. I don’t understand you: You say he was between Mrs. Eastman and yourself?
“A. After he drew his pistol, yes, sir. He got behind Mrs. Eastman, and had Mrs. Eastman and the man between he and I. He passed in front of them.
“Q. Well, that is what I want to know.
“A. (Continuing). And between us.- And the movement wras very quick and fast. They at once — Mrs. Eastman became wildly excited; she grabbed this gentleman. I couldn’t describe accurately their movement; my mind and eyes were more upon Mr. Carmack than any other incident at the moment. I had addressed him just as I would any one. I made no movement of any character that was hostile in the world. This occurred, and he got behind Mrs. Eastman—
“Q. What -did you say when he got behind the woman?
“A. Well, I made some remark, ‘Damn cowardly to get behind a woman with a pistol in his hand’- — something on that order, the exact words I couldn’t say exactly; about that, as near as- I could say. They moved then to the right and he on to the left.
“Q.. Well, before we get to that—
*201 “A I thought you wanted me—
“Q. Did you say before he moved in front of Mrs. Eastman, or at any time, ‘I have got the .drop on you,’ ‘Well, I havel got the drop on you,’ or words to that effect?
“A. No words equivalent to it, for I didn’t have the drop.
“Q. Did you make any overt act, or do anything, except as you have stated, with your arm in the position of gesticulation?
“A. Nothing whatever. I didn’t have my hands in my pockets.
“Q. Did you draw or attempt to draw any weapon?
“A. I did not, at that time.
“Q. Did you have any purpose in addressing him, ‘Mr. Carmack,’ of shooting him or killing him?
“A. I had no purpose of shooting or killing him; none.
“Q. When he was moving down, just state what then occurred as he moved down?
“A. Well, it was all very rapid. The mind, almost itself could hardly keep up. I can tell you just the impressions that occurred. Hie passed these people that were between us; passed to the right — he passed to the left, having still his gun in his hand, to these posts, and got behind — went behind the posts, passing the south post, not north, but-passing around the south post, and about that moment, as he got around, Robin came in practically between Mr. Carmack and myself, or between those posts and myself, and quicker than I have been talking Mr. Carmack fired through between the posts,*202 and very quickly thereafter fired another shot; and in the meantime, Robin, going south-wards still, got around the lower side of the southern post, and then for the first time I saw his weapon firing.
“Q. At the time Senator Carmack shot Robin, or before that time, did you have your pistol drawn or in your hand?
■ “A. I did not, nor an effort to it, until he did shoot Robin, and then I attempted — probably got my pistol partially out — the firing had ceased. I saw that Robin had been shot, and I put my pistol back in iny pocket and went to Robin.
“Q. By the time or when Carmack had gotten beyond this old man, how close was he to the curbing?
“A. Well, it could not have been very many feet; three or four or five, maybe not over three or four feet, because the passage was there. I couldn’t tell, I didn’t measure it.
“Q. Well, the whole space was only five or six feet? . . .
“A. I have given it as I understand it, that it was just a step or so. I couldn’t tell, the excitement was so intense. I give you just the best impression that came to me.
“Mr. Washington:
“Q. How many shots were fired?-
“A. Five.
“Q. describe the reports?
“A. Oh, well—
*203 “Q. That is, with reference to sound — which where the louder reports, and which were the finer reports?
“A. Well, Mr. Carmack’s shots were the first, and were louder than the shots of the pistol of Robin.
“Q. Yes, sir. When you — immediately after the shooting you said Robin attracted your attention. What was there about Robin that attracted your attention?
“A. Well, Robin leaned at once aginst the southern post at the — from the southern' side of that post — the lower side, and I saw .that he was shot; at least, every indication that he was shot. I didn’t see where he was shot, or how; but I saw — my mind — that he was faint, leaned up against the post. I then went right immediately to him and asked if he was hurt. He said he Avas. I asked if he was badly hurt. He said, £I don’t know; am shot through the shoulder.’ I couldn’t tell beyond that. I then assisted him to the — what flashed upon me as the nearest place for assistance, which was Dr. Fort’s, that I knew of, had been there, and I took him just in.”
We will not undertake to set out literally the testimony of Robin Cooper as to what occurred at this unfortunate meeting of the parties, but will content ourselves Avith giving in substance its salient parts. This witness states that when his father got on the sidewalk, and was walking south in the direction from which Mr. Carmack was approaching, he (Robin) walked in a diagonal direction across Seventh avenue in the direction of the two poles, so frequently mentioned; that when his father reached a point just a
He states that there were nine loads in his pistol, though he only fired three of them, but these in quick succession, and that he ceased firing because he saw that Mr. Carmack was hit and his “knees giving way.”
The witness further testifies that his father did not say to Senator Carmack, “Now, I’ve got the drop on you,” or anything else “in substance” like this, but that, when Mr. Carmack, drawing his pistol, stepped in front of Mrs. Eastman, his father did call “him a coward for getting behind a woman, or words to that effect.” This witness was asked if his attention was fixed on “any particular thing or person, after seeing the pistol drawn by Mr. Carmack,” and he answered: “I was on a terrible nervous tension, excitement and strain, and I ididnt see anything after I intuitively jumped forward between papa and Senator Carmack. I just have a recollection of seeing Mrs. Eastman pulling the old man with her down the street, and the first thing I knew was this shot through the posts into my collar. My attention was ■ fixed on Senator Car-mack entirely . . . The whole thing was over almost in an instant.” He further states that up to the time Senator Carmack drew his pistol he is certain his father had not drawn one, and agrees with his father in his statement that only five shots were fired.
We do not deem it necessary to examine the criticism made on the testimony of these two last-named witnesses, as our only purpose now is to present the respective theories of the State and the plaintiffs in error, as to the circumstances immediately connected with the killing, and not to settle them.
In the charge of the trial judge it is stated, as one of the contentions of the State in the trial below, that while Col. Cooper was addressing Mr. Carmack in a threatening manner, “Robin Cooper came up in the rear of Mr. Carmack and began to fire on him.” We are unable to find any evidence in the record to warrant this contention, save as it is found in the bullet wound in the hack of his neck.
_ We think it may be taken as established, without any real conflict, that, five shots were fired — two of them by'Ml. Carmack and three by Robin Cooper. The friend who loaned Mr. Carmack a 38-caliber, double-action, five-shooting Smith & Wesson pistol, the night before, and instructed him in its use, says all of its chambers were loaded at that time. This gentleman is of the highest professional and personal character.
While this testimony corroborated Robin Cooper and other witnesses for the defense that Mr. Carmack fired twice, it did not tend to fix the order of time in which the five shots were fired. It is insisted that this is found among the other evidence, particularly in that of Dr. Glasgow, a surgeon of high standing in Nashville, who caused the body of Mr. Carmack to be exhumed, a short time after it was buried, and made a careful autopsy. This was done at the instance of the State; but, the State failing to use him as a witness, he was introduced by the defense. The witness, immediately after making this autopsy, set down its result in writing, which he used in refreshing his recollection. This autopsy disclosed three wounds — one of which was 2% inches below the left nipple and IV2 inches to the inner side. The bullet which made this wound entered between the fifth and sixth ribs, passing through the heart and other vital organs, and, ranging backward and downward, lodged under the skin between the eighth and ninth ribs. Another wound was made by a bullet, which,
It was and is insisted by the plaintiffs in error that these wounds corroborated Robin Cooper in his claim that Mr. Carmack was, at the time of their infliction, standing in the street, which was a few inches below the curb of the pavement, from which he states he shot, and that at the time Mr. Carmack received the shot below the left nipple he was in the act of firing a third time, with his left front exposed, and the impact of this shot served to expose his left side still more, when he received the second shot; and the force of these two drove his body still further around, so that in receiving the last shot Ms back was exposed.
It is further insisted that either of these wounds was mortal, and, having received any one of them, it is impossible to conceive that Mr.' Carmack fired his shots thereafter. In other words, the contention is their nature tends strongly to corroborate the witnesses for plaintiffs in error, who state that it was only after Mr. Carmack fired, his two shots at Robin Cooper that the latter fired his pistol.
We will now consider some of the assignments of error directed to the action of the court in the trial of the cause.
As has already been said by us, it was not criminal per se for Col. Cooper to cross the street for the purpose, as avowed by him in his testimony, of having a personal interview with Mr. Carmack and protesting against the further offensive use of his name in the Tennessean. Unquestionably, he had the legal and moral right to do this. It was, no doubt, inconsiderate, in view of the fact that Mr. Craig had reported to him the night before that he left Mr. Carmack in an ugly mood. It would have been much wiser for Mm to have left this matter for adjustment in the hands of a prudent counsellor like Mr. Bradford, where only just before he had placed it. Still, inconsiderateness is not criminal intent, nor was the act itself, inspired by the motive claimed by Col. Cooper, either, “aggressive” or
This general rule is conceded by the attorney-general. His insistence, however, is “that no one has the right to approach another for an interview, or for any other purpose, in such manner and under such circumstances as would justify the other party in believing himself in danger of death or great bodily harm,” and that this principle is controlling as applied to the facts of the present case.
It is true that C'ol. Cooper had no right to approach Mr. Carmack in a manner to “justify” the latter in believing his life or limb was in danger, and if he did, if his approach was so aggressive in its nature as to reasonably warrant such belief, then Mr. Carmack would have been guilty of no crime had he slain him, or, being the victim, Col. Cooper could not avail himself ■of the plea of self-defense, nor could Robin Cooper, if he slew Mr. Carmack to protect his father from impending danger. The contention, however, of the plaintiffs in error, is that there was nothing of menace or aggressiveness in the action of Col. Cooper. They deny absolutely that Col. Cooper-said, when he approached, with Mr. and Mrs. Eastman standing between Mr. Car-mack and himself, either literally or in substance or effect, “Well, here you are, all right; I have the drop on you now.” They affirm with equal positiveness that, having reached the place, and when in the positions mentioned, Col. -Cooper addressed him as “Mr. Car-mack,” and in an instant Mr. Carmack drew his pistol
To cut off the plea of self-defense in a case of homicide, attempted or accomplished, there must be legal aggression or fault. As is said in Foutch v. State, 95 Tenn., 711, 34 S. W., 423, 45 L. R. A., 687, “in order to make a man guilty of murder, who is- the ‘aggressor,’ or ‘in fault,’ or ‘who provokes a difficulty,’ in which his adversary is killed, he must have provoked.it with the intent to kill his. adversary, or do him great bodily harm, or to afford him a pretext for wreaking his malice upon his adversary [citing authorities]. In order to deny to such party the right to rely on the plea, of self-defense, it must appear that he was the ‘aggressor,’ or ‘in fault,’ or ‘provoked the difficulty,’ in such a way and with such intent as the law contemplates in the use 'of these terms.”
We believe this is a sound exposition of the law.- And we are also satisfied that the fact that Ool. Cooper had the night before made threats, and was armed- at this time, if he made no hostile demonstration, and that Robin Cooper at this moment had on his person a pistol, which earlier in the day he had secured for the purpose of protecting his father from a deadly assault by Mr. Car-
The theory of the plaintiffs in error was that neither had been guilty of anything that would in law cut them off from this right, and certainly, supported as this theory was by testimony, it was the duty of the trial judge to give it distinctly to the jury in charge. In order that their theory might thus be given, it was embraced in the following special request:
“Gentlemen of the jury, it is insisted by the State in this case that the difficulty" in which the deceased, Carmack, lost his life, was provoked or brought on by the fault or contrivance of the defendants, or some one of them, and particularly of the defendant D. B. Cooper, and consequently that these defendants, although they. may have been assaulted and shot by Senator Carmack, had no right to shoot him; for, having provoked the difficulty, having produced the necessity for Carmack shooting at them, under the law they would not have the right to shoot at Carmack, and would be deprived of the doctrine of self-defense. Now in this connection, I charge you this: In order for this doctrine to apply, and before these defendants can be deprived of the right of self-defense, if you find that the deceased, Carmack, at the time he was killed, was making a deadly assault*213 upon Robin Cooper, or upon D. B. Cooper, it must appear to your satisfaction, and beyond a reasonable doubt, that these defendants, or some one of them, must have sought or provoked this difficulty with the deceased with the intent of killing him, or doing him some great bodily harm. In order to deny the defendants the right to rely on the plea of self-defense, it must appear that they were the aggressors, or in fault, or provoked the difficulty in such way and with such intent as the law contemplates in the use of these terms; and in this connection I charge you, gentlemen of the jury, that the defendant D. B. Cooper had a right under the law to seek out, or had a right under the law, when he saw deceased, Carmack, approaching him, to go across the street and meet him and have a talk with him, and to protest, and, if necessary, to demand that the said Carmack should cease the offensive use of his name in his paper; and I charge you further in this connection that the fact that Cooper and his son both may have been armed, and the fact that Cooper may have the night before, through Ed Craig, said that one or the other of them, either he or Carmack, had to die if his name was used any more in an offensive way, and the fact that after he had sent this threat to Carmack his name had again appeared in the paper in such a way as to be offensive to Cooper, that nevertheless., and without regard to all this, Cooper still had the right under the law to approach Carmack, and to make the demand upon him that his name be no longer offensively used in the paper, and the mere fact that he did ap*214 proach him for this purpose, if this was his purpose, would not be such an aggression upon Cooper’s part, or such provocation by Cooper of a difficulty, that would deprive either Cooper or Ms son and codefendant, Robin Cooper, of exercising the right of self-defense and of shooting and of killing Carmack, if. when they approached him for this purpose they had no intention of killing Carmack, or shooting except in their necessary self-defense, and all that they did was simply to walk across the street to meet him, and, as they approached him, defendant, D. B. Cooper, with his empty hand extended, addressed him as ‘Mr. Carmack.’ If under these circumstances Carmack immediately drew his pistol, he himself put these defendants upon the defensive, and in that event either or both of these defendants had a right to kill him, if it appeared necessary to kill bim in order to save either of them from death or great bodily harm at his hands; and this would be none the less true, although it may appear to you from the evidence that defendant I). B. Cooper said in substance: ‘Well, here you are, all right; I have the drop on you,’ if at that time it appeared, or should have appeared, to the deceased that the defendant D. B. Cooper did not have the drop on him, and had his empty hand only extended.”
This request was declined, for the reason, as stated by the trial judge, that it was substantially embraced in the general charge.
It is admitted by the counsel for the plaintiffs in error that in the abstract much of this request was given in the charge. They concede that in this sense the trial
It is further insisted that he did not apply the abstract proposition of law to the facts as claimed by the plaintiffs in error, and altogether omitted the vital part of their theory and of their request; that is, he failed to say to the jury “that D. B. Cooper had the right to • cross the street for the purpose of talking with Mr. Carmack, and if, when these defendants approached him for this purpose and without any intention of killing' him, except for their necessary self-defense, and if they committed no assault upon him, nor menaced an assault upon him by an overt act, that the mere fact that he crossed the street for the purpose indicated would not be such a provocation of a difficulty” as would deprive either him or Robin Cooper of the right of self-defense.
The charge of the court, in which is stated hypothetically the theory of the plaintiffs in error, covers sixteen printed pages. It is admitted, in this very extensive statement, that the trial judge in its concluding part does — not directly, but inferentially — tell the jury that Col. Cooper had the right to cross the street for the purpose of talking with Mb. Carmack, provided he “went on a mission of peacé and for the purpose of
Without further following the criticism of the action of the trial judge, we will content ourselves with saying that in failing to give this request he committed error.
It will he recalled that in the course of her testimony Mrs. Eastman stated, when she saw Mr. Carmack •fall, being in a state of great excitement, she denounced Col. Cooper as a brutal murderer, who had taken advantage of her presence to kill his adversary without giving him “a single chance,” and, though standing near, he made no reply. As bearing on this testimony, and the weight to be given it, the following request was submitted and declined:
“Among the other evidence the court has permitted you to hear in this case is the testimony of Mrs. Eastman as to certain accusations and denunciations she made against the defendant D. B. Cooper, immediately after the shooting, while she was standing in the ghank-lin yard, to the effect that he (Cooper) had murdered Carmack. This evidence has been admitted for your consideration as a circumstance' tending to show the*217 guilt of tlie accused, provided you believe in the first place that, if this language was used or accusation made by Mrs. Eastman, Cooper heard and understood it at the time; and, second, that it was incumbent upon D. B. Cooper, under all the circumstances surrounding the parties at the time, to make a denial of her statement. If you have a reasonable doubt in your mind, even' though you may be satisfied that Mrs. Eastman made such a statement, as to whether D. B. Cooper heard it, or understood its import, or if it appears that D. B. Cooper sijnply regarded what she was saying as the exclamation and outburst of an excited woman, then, under these circumstances, he would not be called on to deny it, even if he heard it, and the fact that he made no denial could not be looked to as a circumstance tending to show his guilt, and even if he heard it, if in view of all the circumstances, the condition of his son, the fact that he was wounded, the fact that D. B. Cooper at that time did not know the extent of the injury to his son, the further fact, if such be a fact, that D. B. Cooper had not shot Carmack, if in view of all these conditions, and the general excitement- which prevailed at the time, D. B. Cooper .could not reasonably be expected to . make any denial of these charges, then the fact that he remained silent would not be a circumstance tending to show his guilt in this case, and in either one of these aspects of his testimony, any such accusation or denunciation that Mrs. Eastman made would be absolutely immaterial.”
It is also assigned as error the refusal of the court to grant the following request:
“In determining the credibility of witnesses and the weight to be given their testimony, you, gentlemen of the jury, should look not only to the integrity of the witnesses and their purpose and intention to testify truthfully, but you should also look to all the. circumstances immediately surrounding the witness at the time the events about which he or she testifies transpired. It is no impeachment of the integrity of a witness to state that his or her memory is defective, or that, by reason of the exciting circumstances with which the witness was surrounded, he or she incorrectly understood or remembered the words used. • Now, it is not insisted by the defendants in this case that Mrs. Eastman, in undertaking to state what occurred, has testified corruptly or intentionally false; but it is insisted that the suddenness with which the encounter occurred between the deceased and the defendants, the fact that that encounter was not anticipated or expected by Mrs. Eastman, the very short time in which the whole transaction occurred, her excitable and nervous' disposition, are all circumstances that can be and should be looked to by you upon this question — not whether Mrs. Eastman had intended to tell the truth, but whether she*219 has been able to correctly understand what was said by D. B. Cooper, or has been able to remember accurately what be did say. . I instruct yon, gentlemen of the jury, that it is the law that the testimony of any witness, in undertaking to repeat the words or language of a third person, especially when beard under exciting circumstances and conditions, is the most unsatisfactory evidence known to the law, by reason of the fact that they are always liable to be mistaken and misremembered, and their meaning is liable to be misunderstood and exaggerated; and therefore the court instructs you that evidence of this character should be received with great care and caution.”
That this request contains a sound statement of a legal rule cannot be denied, and no satisfactory reason can be assigned for its refusal, unless it was elsewhere sufficiently covered, or else that it was improper to single out her testimony from that of all. other witneses and make it the subject of a special charge.
As to the first of these suggestions, it is said that, while the trial judge did give the general cautionary charge as to extrajudicial conversations, this .did, not meet the requirement of the present case, resting so largely upon the testimony of Mrs. Eastman, as to what was said, under conditions which not only excited her to the highest degree, but would have unstéad'ied one of iron nerve, steeled by experience to confront sudden danger. It can hardly be said that this was a case' to he satisfied with an academic instruction whch was in these general terms: “The court further instructs you
It is objected that not only do these general observations fail to meet the necessity of this case, but that, while telling the jury that the counsel “insisted” on the infirmity of such testimony, he fails altogether to tell them that this insistence was warranted in law. The text-writers and the courts aliké have said such evidence is the weakest of all evidence. In a civil case, involving rights Of property (Earp v. Edington, 107 Tenn., 23, 64 S. W., 40), this court so held. While it might be going too far to say as much to the jury, still we have no doubt he should have unmistakably laid down rules of law for their guidance in considering such testimony.
As to the second suggestion, it may be said that ordinarily it is improper to single out the testimony of a single witness and call the attention of the jury to it; but we think the cross-examination of Robin Cooper made this an exceptional case; for, over the objection of Ms counsel, he was asked to state if he knew of any
It is further insisted by counsel that the trial judge, in his statement of the theory of the case and in his declaration of the law which he regarded as applicable, indissolubly “linked and bound together by a joint and common intent” father and son, and the latter’s right of self-defense was made absolutely “dependent upon the action and intent” of the father. It is said, and properly so, that nowhere in the charge was the jury instructed upon the independent purpose and intent of Robin Cooper. He had testified that he followed his father across the street, because he was afraid that Mr. Carmack, resenting the message his father had sent, might attack him, and that he had no thought or apprehension that his father would attack Mr. Carmack; in fine, believing, if attacked, his father would be, by age and infirmity of his hand, unable to protect himself, he followed to give him protection in that contingency. He further testified that it was only after Mr. Carmack had drawn his pistol did he leap upon the pavement between him and his father, and then only after Mr. Carmack had wounded him by his first shot, fired so close as to powder-burn his face, and had followed that up with a second* shot, the ball passing through his sleeve, that he drew his pistol and fired three times
“If you believe, from all that transpired during that day, as well as what occurred at the corner when Robin first discovered the deceased, that Robin in good faith believed, when his father left him and started down to meet Carmack, that defendant D. B. Cooper was going for no other purpose than that purpose for which said D. B. Cooper said he was going, to wit, to have a talk with him, and if in this belief Robin accompanied his father, and when they met Carmack, at or about the poles, Carmack immediately began firing upon Robin, Robin Cooper, under the law, had the right to shoot and kill Carmack, if necessary, for his own protection, although defendant D. B. Cooper may have - gone there for the purpose of provoking the difficulty.”
Request No. 10 was this:
*223 “If you find from the evidence that Robin Cooper crossed the street and went to where the deceased was without any intention of killing the deceased or doing the deceased great bodily harm, or without any intention of bringing on a difficulty with the deceased, for the purpose.of killing the deceased or doing the deceased great bodily harm, that is, if Robin went to the place of the meeting without any criminal intent, and if you further find from the evidence that the deceased, without any hostile demonstration, on the part of Robin Cooper, drew a pistol and fired at Robin, or made any hostile demonstration such as would reasonably induce the belief in Robin’s mind that the deceased intended to do him great bodily harm, and if you further find that Robin then killed the deceased, a case of self-defense is made out, and you should find all the defendants not guilty.”
These requests should have been granted, and their refusal was error.
The State, over the objection of the plainiffs in error, permitted Dr. J. A. Witherspoon, one of its witnesses, to testify that on the morning of the day of the homicide Mrs. Dr. Burch, daughter of Col. Cooper, telephoned him that her father had made certain threats against Mr. Carmack, and he had communicated the fact to Mr. Lander, the kinsman and business associate of Senator Carmack. Mr. Lander was then called, and he stated that about 12 o’clock on the day of the killing, and just after his interview with Dr. Witherspoon, he saw Mr. Carmack, and what he then said is given as
This was purely hearsay evidence, and clearly incompetent for that reason; but the .record is in no condition to permit the error in its admission to be taken advantage of on this appeal.
■ We also think the trial judge erred in permitting the representative of the State, in his cross-examination of Robin Cooper, over the objection of the latter’s counsel, to ask him if he knew of any reason that John -Tindall, the newsboy, and certain other witnesses, whose •testimony was contradictory of his own, had for committing perjury in order to rob Mm of his life or liberty. As an illustration of this course of examination, we give the following:
“Question: Do you know of any motive why that boy (John Tindall) should come in here and perjure himself to deprive you of yoiir life or your liberty?
“Answer: Of my own knowledge, I do not, sir.”
With all the latitude allowed in cross-examination, yet wé think that this should not have been permitted, if for no other reason, because it forced the accused indirectly, and we think prejudicially to himself, to pass on the credibility of these witnesses against him. Counsel for plaintiffs in error insist “the impression that the jury were bound to get from Robin’s answer was
A further assignment of error is that the State, over objection, in the cross-examination of Col. Cooper, asked him about his administration of his office as the clerk and master of the chancery court of Maury county, and what were assumed to be defalcations therein, occurring at some time between December, 1870, and Jan-ury, 1881, at which latter date he retired from the office. This assignment rests on two grounds: Its remoteness in point of time; and, second on the methods pursued in getting this part of the case to the jury.
It is true that, when the accused saw proper to go on the witness stand, he became subject to all the rules which prevail in the matter of dieting testimony. ■ It is also true, as to the scope of a cross-examination, much must be left to the sound discretion of the trial court, and that unless it is discovered that there has been an
But a fact irrelevant to the issue on trial, sporadic in its nature, and remote in point of time, the uncovering of which will serve no other purpose than to besmirch -the witness, we think is beyond the limits of legitimate cross-examination. The public has an interest in good citizenship, and the courts should therefore encourage, by enforcement of reasonable rules, everything which contributes to its establishment, and discourage that which would be a hindrance. Nothing would prove a surer hindrance than keeping alive the remembrance of some long past error or wrong, and nothing would so ■ contribute to perpetuate this remembrance than to compel the" party to make confession of it every time he went upon the witness stand. '
See, also, Bowers v. State (Tex. Cr. App.), 71 S. W., 284; State v. Houx, 109 Mo., 654, 19 S. W., 35, 32 Am. St. Rep., 686; Dyer v. State, (Tex. Cr. App.), 77 S. W., 456.
It is not insisted that evidence as to the management by the accused of his office of clerk and master reflected upon the issue in this case. Its competency was placed on the ground that it tended to impeach his character as a witness; but did it follow that, because he mis-manged the affairs of this office thirty years before, he could not be relied upon to recognize the sanction of an oath then? If the State had been prepared to show in his cross-examination a series of moral delinquencies, approaching to a point of time near to that of the trial, as in Zanonc v. State, supra, then this one, being a part of that series, and of the same general character, would have been within its legitimate scope. Mere remoteness would not have been ground for its rejection; but offered as it was, and especially when it is taken in connection with the explanation given by the witness, that his defaults were “from the absence of business methods,” and not from “willful misappropriation, or dishonesty in office,” we think it only served to besmirch the witness
Error is also assigned' upon the action of the court in excluding certain parts of the testimony of Goy. Patterson. It will be recalled that he stated that, upon being advised of the pendency of the trouble between Col. Cooper and Senator Carmack, with Mr. Scruggs he started out in search of the former, and finally found him at the Maxwell House; that Mr. Bradford was sent for, and Robin Cooper came in, and that the interview that then occurred resulted in a promise on the part of Col. Cooper to turn the note wMch he had prepared for Mr. Carmack into the possession of Mr. Bradford and to go to his office at 3 o’clock that afternoon with a view to a possible adjustment: Having accomplished this much, Gov. Patterson departed for his own home; Robin Cooper accompanying him on the way and into the Arcade, where they separated. As to Robin Cooper’s attitude in that conference, and up to the time of their separation, Gov. Patterson testified as follows:
“Q. What was Robin’s actions and bearing? Was he active in bringing about the result at the Maxwell House?
“A. What result do you refer to, Judge?
*230 “Q. Agreeing to allow Mr. Bradford to take hold of this matter, and Ms father not to send the note — to tnrn it over to Mr. Bradford to settle?
“A. Yes; Robin was anxious for it to be done, and expressed himself so.
“Q. What was Ms manner there about that — in walking down from the Maxwell House?
“A. Why, Robin’s manner and demeanor were very quiet and pacific, so far as I could see.
“Q. Displayed anxiety to have the matter settled that way?
“A. Yes; he did.
“Q. Now, when he left you at the Arcade, and thanking you for what you had done, did he display any emotion about it?
“A. Yes; his eyes filled with tears.”
The governor further testified that in separating he made this remark to him: “Robin, if I was in your place, I would stay with my father as much as I could today.”
This testimony, although brought into the record, was not permitted to go to the jury. We think error was committed in this action of the trial judge. As has been already stated, this case was tried in the lower court upon the theory that there was a conspiracy at that very time to .murder Senator Carmack, and that this young man was a party to this conspiracy. This testimony, as to his actions and his demeanor at a time when the conference closed, which strongly indicated that a hostile meeting between his father and Mr. Carmack
For the reasons mentioned, the case must be reversed and remanded for a new trial.
NOTE. — The opinion of Chief Justice Beard is published just as it was submitted by him to his associates, in consultation; and when it was not concurred in by them, he, doubtless by inadvertence, omitted to correct or modify the last paragraph, so as to make it conform to the direction and order of the court as stated in the last paragraph but one of the opinion of the court as announced by Mr. Justice Shields. Judge Beard died on December 7, 1910.
Duncan B. Cooper, against whom this judgment of conviction was affirmed, was pardoned by Gov. M. R. Patterson while the court was still sitting. — Reporter.
