83 Tenn. 133 | Tenn. | 1885
delivered tbe opinion of the court.
The prisoner was convicted in the common law court of Madison county of the crime of malicious burning, and sentenced to the penitentiary for three' years. His motion for a new trial and in arrest of judg-^ ment was overruled, and be has appealed to this court.
The indictment is jointly against him and one Robert Meriwether, but there was a severance in the ■court below, and his case is alone before us.
These steps were taken in the presence of the prisoner, and over his objection, and they constitute the first error urged in his behalf.
There is no ground to doubt from this record that
We will uphold all technical rules that subserve the honest end of protecting the just rights of prisoners to a fair and impartial trial under the Constition and the law. We will not enforce trivial ones, not the mandate of the Constitution or of the statutes, which are of use, and can be of use alone to enable the guilty to escape, or to delay the sentence of just punishment.
A question is made here in argument, but not raised by objection of record, that the first count in the indictment is defective, as a count for arson, because it alleges simply that the prisoner “set fire to” the property, and fails to allege that the property was burned. In addition to the objection being dehors the record, it is irrelevant, because it is not a count for arson, but is obviously based on section 5431 (M. & V. Eev.), and follows its language. This is sufficient.
The next contention is that the verdict should have been set aside, and a new trial granted, because, as is shown by the affidavits of two of the jurors, the jury, in considering of their verdict, differed among themselves
But upon a careful examination of the record, we find the facts to be otherwise, even as detailed by the jurors who give their affidavits. Each juror, it seems, did set down or announce the time or number of years he thought the prisoner ought to be confined, and the result of this aggregate divided by twelve was the verdict agreed upon and returned by the jury. But there was no agreement or understanding, -expressed or implied, tacit or otherwise, before this aggregation and division were made, that the result should be their verdict; nor was it in any way to bind the assent or influence the judgment of the individual members of the jury.
And it is the fact of an agreement or understanding, before this method of reaching a result is adopted, or while it is in process of execution, to be bound by its result, and to accept it, that vitiates the verdict. If this be the true test, much less should we be inclined to set aside a verdict, in the absence of an agreement or understanding beforehand to be bound by the result reached under this method, when we can see that the method and its result were not even used as an argument with any member of the jury
' William Glidewell, a brother of the accused, was ■a witness for the State in the case below. His evidence, in connection with other ,circumstances proved, was fatally strong against the prisoner. He testified in chief that some five or six months before the burning, his brother, Meriwether and himself had a consultation, in which his brother and Meriwether “ said Mr. Weatherby had not paid them, and they were going to have their pay, and the first Saturday night in April was agreed on to meet at Lewis’ house to go over to Mr. Weatherby’s and have their pay by burning him out.” The barn and property in it, ■some eighty barrels of corn and some fifty or sixty gallons of sorghum, were burned on this night. He further testifies “ that . the prosecutor offered him fifteen dollars to say that he saw Bob and Lewis set fire to the barn, but did not offer him any thing to give the testimony he had, and that he gave the
The prisoner excepted to the testimony of this-witness, “ because he was an accomplice, and because he was hired.” Its admission is assigned as error. We see nothing in the evidence in- this record to fix the character of an accomplice upon the witness. The most that cán be made out of it in this direction, even inferentially, taking it all to be true, is that-he contemplated being one, but backed out of the enterprise before its actual consummation was undertaken. But even if he were an accomplice, we know of no rule of evidence that would exclude his testimony on that ground; and as to his being hired to testify at that time he, in his evidence thus given,, relieves 'it of its purchasable taint, if he is to be believed in what he then said.
But the prisoner presents the affidavit of this same William Glidewell in support of his motion for a new trial. In it he swears that the testimony given-by him against the prisoner before the jury on the trial of the case, to the effect that the prisoner and; Meriwether made an agreement to bum the barn of Weatherby, as declared in the indictment, was wholly untrue; that no such agreement was ever made: that the prosecutor offered him $15 to testify against prisoner in this cause; that he paid him $2 in cash for that purpose a day or so after the trial before the justice of the peace, and that he was a witness against the prisoner because he was paid to be one.
The court, upon the motion of the attorney-general,
There is nothing in the contention of the learned" counsel for prisoner that a trial judge has no right or warrant to bring a party who has made an affidavit in' support of a motion for a new trial in a criminal case, before the court, to be personally examined therein with respect to the statements made in his affidavit. Courts are created and judges elected' to preside over them/ in ■ order to ascertain the truth and the right in controversies therein pending, and to administer justice as the same may appear to be adjudged by the law. To this • end they have the right to the use of all legitimate sources of evidence calculated to elicit the truth. And to hold that a trial judge, in criminal cases, had no power to bring parties, who make ex parte affidavits vitally affecting
But, however much the affidavit of this witness may smack of suspicion, we cannot ignore it in this record, when we take it in connection with the statement •given in his testimony before the jury, in respect to the offer of the prosecutor to pay him fifteen dollars to swear that he saw the prisoner and Meri-wether set fire to the barn, when the State takes no step to bring him into open court to be examined in regard to the statements made in his affidavit, when the prosecutor himself, a witness in the case, nowhere and in no way in the record pretends to a ■denial of the serious inculpatory matter alleged against him by this witness, and when, as is obvious, the testimony given by this witness, afterwards in this ■affidavit stated by him to have been absolutely and wholly false, and to have been purchased by the prosecutor, carried heavy weight and pointed significance with the jury. "While the truth may have been reached by the jury in the cloud of uncertainty and unreliability investing and infesting the testimony of this main witness for the State, as evidenced by this record, the only safe course for us is to award the prisoner a new trial.
The judgment of the court below is therefore reversed, and the cause will be remanded for a new trial.