73 Tenn. 291 | Tenn. | 1880
delivered the opinion of the court.
The prisoner, John A. Epperson, having been convicted of the crime of murder in the second degree, has appealed in error to this court.
The defendant pleaded in abatement of the indictment that John Livingston, one of the grand jurors who found the indictment, was not one of the venire selected by the county court . to serve as jurors at that term of the court, that the venire was not exhausted in impaneling the grand jury, and that more than thirteen of the venire were in attendance and could .have been selected as grand jurors. To this plea the State demurred, upon the ground that the facts stated fail to show that the said John Living
The defendant also pleaded in abatement that the name of the prosecutor was put on the indictment without his knowledge and against his will. It is assigned as error that the defendant was tried without any action having been taken on this plea. But the defendant had the right to abandon the defense if he found that the fact pleaded was not true, or for any other reason. By pleading to the merits and going to trial, the defendant waived his plea in abatement. .
It is further assigned as error that the court, after the jury were impaneled and sworn, permitted the attorney-general to read a certified copy of the indictment from the minutes, upon pi'oof that the original was lost or mislaid, and without a special order of substitution. The proof consisted of the affidavit of the clerk of the court that he had made diligent search among the papers of his office and was unable to find the indictment. The Code, sec. 5138, provides that all indictments for offenses of the grade of felony, returned by the grand jury as a true bill, “shall be entered by the clerk with the return in full on the minutes of the court, and the originals compared with the entry of the judge before he signs the proceedings of the day.” By sec. 5139, “a copy of the minutes shall be as good and valid as the originals, if at any time the latter are lost, destroyed, misplaced or purloined. Previous to the statute, a copy of a lost record could only be substituted by order of the court, adjudging
It is again assigned as error that the court refused to allow the defendant to read, with a view to contradict the principal witness of the State, “a paper that purported to be” the testimony of the witness taken upon the preliminary examination before the committing justices, signed with his mark, and found among the papers of the cause. Undoubtedly, the
Another error assigned, is the admission of parol testimony of the dying declarations of the person for whose murder the defendant was on trial. The deceased was wounded early in the morning, and died about ten o’clock that night, being conscious from the first that his wounds were mortal. One of the State’s witnesses, without giving the statement of the wounded man, says: “I took a written statement of his dying statement, which he signed. I think he spoke of dying before I took his statement.” The next witness testifies: -“He said, before I asked him about dying, the defendant had killed him. He said this at the time his written statement was taken.” The defendant objected, the bill of exceptions says, at this place, “to the introduction of-parol testimony to the dying declaration of the deceased, on the ground that the same had been reduced to writing.” Another witness says she went to the wounded man in the forenoon and staid most of the day. “I talked with him,” she adds, “through the day, and he said he would die. He said that the defendant killed him, and said so several times through the day.” A fourth
Where the dying declaration sought to be admitted consists of a single declaration reduced to writing, the inclination of the courts has been to require the production of the writing as the best evidence of the declaration. 1 Greenl. Ev., sec. 161. The rule has been somewhat relaxed where the declarations have been repeated at different times, at one of which they were made under oath and informally reduced to writing by a witness. Rex v. Reason, 1 Str., 499. Where the statement was ’ reduced to writing by the justice before whom the defendants were examined, and sworn to but not signed by the deceased, the holding of this court was that the writing was not admissible as original evidence at all, but only as secondary evidence in the event the justice could not recollect the statement. Beets v. State, Meigs, 106. Where the life or liberty of a prisoner may turn upon a single declaration reduced to writing, it may be necessary to critically review the authorities with a view to the adoption of the true rule governing the admission of oral testimony touching the same
It is suggested, rather ■ than argued, by one of the counsel for the prisoner, that a clause of his Honor’s
The last argument made on behalf of the defendant is that the verdict is not sustained by the evidence. The record discloses a terrible domestic tragedy. The prisoner has been tried and convicted of the murder of his father, who undoubtedly died from the wounds inflicted by him. In a personal struggle at the same time between two of the brothers of defendant, both of- whom are witnesses in this cause, their -mother and one of their sisters were killed by shots from a pistol in the hands of one of the brothers. One of these brothers is the prosecutor and the principal witness-for the State, Avhile the other is a witness for the defense. The fact that the feelings engendered by the-family feud and family slaughter may color the testimony, justifies and requires the exhaustive argument of the counsel and the careful scrutiny of the court. The proof of a medical witness shows that the death of the deceased was occasioned by two wounds, produced by a sharp-pointed cutting instrument, one in the abdomen and the other in the right side, cutting through a rib. Both stabs penetrated the cavity of the body, and either would probably have been fatal.
J. if. Epperson, the deceased, and father of the defendant and the three witnesses, had, on the night before the difficulty, and while- under the influence of liquor, abused his wife, the mother of the defendant and witnesses. The defendant, it seems, had a still about one • mile from the residence of the father, -at which he and George were on the next morning. George went home early, and then returned and told defendant that the father had abused the mother the night before, and she wanted him to go and stay with her until the father became sober. The defendant had a large knife, with a blade six inches long, sharp on both edges, which did not shut, and which he had recently bought. George says he did not see the defendant get 'the knife, but heard him say something about it, and defendant asked him where it was. George and his sister both say they saw this knife at their father’s place after the difficulty, and the sister says she found it immediately thereafter in the room where the fight occurred, and it had blood on it.
Thos. Epperson supplies these omissions. He says that the defendant came to his house, with their brother George, that morning, and said that father had abused mother, and he was going up to give him hell, at the same time pulling half out of his pocket the two-edged knife above described. Witness told defendant to wait and he would go with him, b.ut defendant said he had no time, and went on. Witness followed in about an hour. His statement of what took place •at his father’s is substantially in accord with the testimony of the other two witnesses until he left the room with his mother. He then says he heard his father call to him, and went in the house. The defendant had the father pushed back against the door, the father still holding the drawing-knife, which was
It will be remembered that Mary testifies that when she returned into the room after putting the baby out of the door, the defendant and his father had quit fighting, but that Thomas and George were stifl struggling over the pistol. There must have been an interval of time, though it may have been a short one, after the cessation of hostilities between defendant and his father, before Thomas could, while standing in the yard fifteen feet away, have seen the defendant stab the father the second time in the porch. The other witnesses do not contradict the statement of Thomas in this regard. They are simply silent. George is
There is no error in the judgment, and it must be affirmed.