126 Tenn. 394 | Tenn. | 1912
delivered the opinion of the Court.
Plaintiff in error was indicted and convicted of murder in the second degree, and sentenced to twenty years in the penitentiary, for the murder of one Arthur Johnson.
The facts established upon the record by a clear preponderance of the testimony that plaintiff in error and ■the deceased met.at the store of one Evans in Olairfleld and engaged in a game of craps. Hamblin won $4 from Johnson, and at Johnson’s request they played again, and Johnson won $4 from Hamblin. Johnson started away, and it was then proposed by one or the other that they shoot again for $20. This -was agreed to, and the money was placed upon the floor, and Hamblin shot the
He had two wounds in the breast and one wound in the head. When Hamblin first appeared in the front of Jones’ store, he stated to Johnson that if he did not return him his money that he would kill him, applying divers and sundry vile epithets. Johnson was unarmed, and had made no demonstrations towards Hamblin at the time of the first shot.
The case was decided at a former day, and the facts found' by the court were announced in substances as above stated. We have been presented with a petition to rehear by counsel for plaintiff in error, but the correctness of the facts stated is not assailed by the petition. A rehearing is asked alone upon two questions presented in the argument, to the effect that the special judge who was elected to preside at the trial is not shown by the order on the minutes showing his election to have been in attendance upon the court at the time of the election, and also that the order showing the election of the special judge is not signed by the clerk of the court. No question was made in the court below challenging either the validity or the regularity of the election of the special judge. There is no complaint made to the conduct of the special judge while presiding at the trial, and no suggestion that in fact he does not possess every qualification required by the constitution and the laws.
There is no suggestion that he was not in fact elected, and that he was not in fact present and in attendance
The petition to rehear admits in effect the guilt of the plaintiff in error, but insists that a reversal should be had for the irregularities stated.
In the case of Harness v. State, 126 Tenn., 365, 149 S. W., 911, decided at this term, the case of Low v. State, 111 Tenn., 81, 78 S.W., 110, was explained andlimited to its facts; the court holding that the failure of a special judge to take the oath against dueling was not ground for reversal. It was stated in that case, in substance, that no reversal would be had in any case for technical errors not affecting the merits, unless some substantial right of the accused guaranteed to him by the statutes or the constitution was violated. This is
While this court will see that no innocent defendant shall suffer for want of a fair trial, it is its duty at the same time to see that no guilty one shall escape through a mere irregularity or technicality which does not and cannot affect the merits. In every criminal case the merits is the guilt or innocence of the accused. Wilson v. State, supra. The rule announced in that case was predicated upon section 6851 of Shannon’s Code, forbidding a reversal by this court of any judgment, decision, or decree of an inferior court, except for errors which affect the merits.
The case of Harness v. State is based, not only upon the previous decisions of this court in accord with Wilson v. State, but under chapter 32, Acts of 1911, which forbids reversal by this court of any case, criminal or civil, for any error in the proceedings below, unless it is made .to affirmatively appear that the errors complained, of affected the result. We have said in numerous cases, both written and oral, that this statute must be given. effect, unless it invades some constitutional right of the accused.
If the record of the election and qualification of the learned special judge• recites the truth, it is manifestly