76 Tenn. 669 | Tenn. | 1881
delivered the opinion of the court.
The defendant, with his father John A. Crowder, were jointly indicted for maliciously stabbing the prosecutor, John W. Knowles.
John A. Crowder was first tried and acquitted. Afterwards the defendant was tried and convicted, and sentenced to two years’ imprisonment in the peniten
The prosecutor and John A. Crowder owned and occupied adjoining farms, with a pass-way between, which the prosecutor claimed as a private way. Said John A. Crowder proposed to set out bis fence so as to interfere with the road, and he and the defendant •were engaged in this work when the difficulty occurred. Only the prosecutor, the defendant, John A. Crowder and one other person were present at the affray — the latter witness saw only part of it.
The prosecutor’s testimony, in substance, is that hearing that the Crowders were setting out the fence, he went to them to see if he could not compromise the dispute. After meeting the parties and some controversy had between them, John A. Crowder said he was going to move his fence out. Prosecutor told him if he did he would throw it down. John A. Crowder then threatened to strike prosecutor with a large stick, and upon the prosecutor telling him to strike, he did strike, when prosecutor caught the stick and jerked • it out of said Crowder’s hand, and then struck him (Crowder) with his fist, either knocking him down or causing him to fall, when the defendant, who had been sitting near by with a knife in his hands, ran up and stabbed the prosecutor twice from behind-The prosecutor then attempted to get away, but a further conflict was kept up between himself on the one side and the Crowders on the other, in which the prosecutor received three other stabs from the defendant, part of which were very severe and dangerous.
This is an outline of the case, omitting details, and omitting a. good deal of other testimony tending to weaken or sustain the respective theories.
Several exceptions are taken to the rulings of the ■court, the most important of which are:
1st. - That the State was permitted to prove that
2d. The State, by several witnesses, sustained the general character of the prosecutor. Two of the witnesses said his character was good for the last eight or ten years. The defendant then proffered to ask the witness as to his character previous to that time, but the court sustained the objection of the attorney-general to the question.
This was not reversible errorthe question was the character of the prosecutor at the time he testified. If the witness knew his character previous to the time fixed by them, their answers. in the form given were almost equivalent to saying that previous to that time it was at least not free from doubt, so that in effect the defendant had the benefit of his proffered question.
Several objections are taken to the charge of the presiding judge, the most serious of which are as follows: ,After saying to the jury that “the son has the right to' fight for the father and the father for the son, under the rules that one has a right to fight in his own defense,” he adds: “If the father is in the fault in bringing on the conflict, then the son cannot lawfully fight in his defense until the father has declined the fight or offered to decline it, and this is true if both parties are in fault in bringing it on
A more accurate statement will be found in the case of the State v. Hill, 4 Dev. & B., 491, quoted in Hull v. The State, 6 Lea, 255, in substance to this effect: ' If a person bring on an affray by making the first attack, lie cannot excuse himself as for a killing or stabbing in self-defense, unless ho show that he has quitted or offered to quit the combat and retreated as far as he could in safety, if the fierceness of his adversary permit.
The general proposition that the party who makes the first attack, looses the right to rely upon the plea of self-defense, unless he can show that he had abandoned or offered to abandon the combat before the fatal blow or stab was given, will, in some cases at least, need some qualification. If, for instance, a person begin a combat with his fists upon one of equal strength, and the latter instantly meet and press his assailant with a deadly weapon so closely as to leave him no reasonable chance to escape or abandon the conflict, and the latter is then compelled to take his adversary’s life to save his own, the plea of self-defense ought to be available. The proposition of the judge, therefore, would have been more strictly accurate if it had been qualified to this extent: If the father was in fault by beginning the combat, before the son could be excused for a stabbing in defense of the father, it should appear that the latter
The question is, whether this error or inaccuracy in the charge upon the facts of this case. constitutes reversible error. I am inclined to think that it does not, but the majority of the court think otherwise, and are of opinion that we cannot undertake to say that the error was immaterial.
The judgment must, therefore, be reversed, and the cause remanded for a new’ trial.