100 Tenn. 287 | Tenn. | 1898
Dan Harris is convicted of the murder of Lizzie Edmundson and sentenced to death, and has appealed. Able counsel has been appointed to represent him in this Court, and he has, after examining the record, presented to the Court certain matters, which it is insisted are defects in the pro
There was no error in this feature of the trial. It appears that when the indictment was found the regular Judge, Hon. J. M. Anderson, was not in attendance at Court. The cause of his absence is not stated. It further appears that the Deputy Clerk caused an election to be held for a special Judge to hold Court, under § 5730 (Shannon’s Code), when Hon. Matt W. Allen was elected to act in the absence of the regular Judge, and the indictment •was found and returned into open Court. This indictment was prepared by E. S. Ashcraft, Attorney-general pro' tern., who had previously been appointed by the Court to act as such in the absence of the
The Code, § 5730 (Shannon’s compilation), provides: “When, from any cause, the Judge of any Court of Record in this State, except the Supreme Court, fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such Court, or is unable to hold the Court, a majority of the attorneys of the Court, who are present and are residents of the State shall elect one of, their number then in attendance to hold the Court for the occasion, who shall have all the qualifications of a Judge of such Court, and who shall accordingly preside and adjudicate.” Subsection 1 provides: “The election shall be held by the Clerk, and, in case of a tie, he shall give the casting vote.” Subsection 2: “The person elected shall, during the period that he acts, have all the powers and be liable to all the responsibilities of a regular Judge.”
This Act appears, from the record, to have been complied with in the selection of the special Judge, and ■ the Act has been held to be constitutional and applicable in criminal cases, as well as civil. John Ligan v. State, 3 Heis., 159; Halliburton v. Brooks, 7 Bax., 320; Hundhausen v. Ins. Co., 5 Heis., 705; Brewer v. State, 6 Lea, 199.
It is objected that the election was held by a Deputy Clerk, and not by the Clerk, as the first
It is said that E. S. Ashcraft, Attorney-general pro tempore, is not an official legally authorized to draw and prefer indictments, and hence the indictment in this case is a nullity. Code (Shannon), § 5769 provides that if the Attorney-general for a district fails to attend any term of the Circuit Court or is disqualified from acting or if there is a vacancy in office, the Court shall appoint some other attorney to supply his place. Section 5770: “The acts of such Attorney-general pro tempore shall be as valid as if done by the regular officer,” etc. See, also, Turner v. The State, 5 Pickle, 555-8. It is said, finally, that while any one of these objections may be cured under the statutes, still, when there is a combination of such irregularities it must be fatal. It is said that here there was a special Judge, a Deputy Clerk, an Attorney-general pro tempore, a panel named by the regular Judge, and a grand jury selected from such panel by him, and thus there is little, if any, of the regular machinery of the Court involved in the trial of this case. But this, we are of opinion, can avail nothing, as in such instances there is a proceeding according to law, and officials appointed and selected under the law, and each authorized by the law to act and
We see no error of law in the record. The charge is full, correct, and unobjected to.
The only other question involved in the case is whether the verdict is warranted by the evidence. The defendant is a negro man about twenty-five to thirty years of age. The party killed was a negro woman, with whom he had been living in illicit relations for some time. She is described by the witnesses as a small woman, weighing about 115 or 120 pounds. The defendant is unusually large, tall, well-developed, and robust. It appears that on the day before the killing was done, at night, he had been drinking some, but the great weight of the evidence is that he was not drunk, and, according to the testimony of his own witnesses, was not so much under the influence of whisky, before and at the time he did the killing, as not to know what he was doing nor so as to affect his walking or actions. He went to the house where the deceased usually stayed, looking for her. Is appears that she was evading Mm, and that she was badly frightened at bis threats previously made.
The defendant caught the deceased at the house
The only defense made is an attempt to prove that the defendant was drunk, but the proof fails to sustain it. There is some evidence of an uncertain character that after the deed was done defendant was quite drunk, but this was after the killing.
But little can be added to this recital, except to say that there can be no possible doubt of the guilt of the defendant, and, while it is said that he was jealous of his mistress, even this poor excuse does not appear from the record, but it stands out unparalleled for barbarity, cruelty, and want of provocation. There is no proof, or even defense, of insanity, and the defendant is an unusual specimen of physical manhood — large, strong, and, the proof shows, was determined, collected, and intelligent. The judgment of the Court below must be affirmed.
It is, therefore, the judgment and sentence of the law, and of this Court, that the defendant, Dan Harris, be delivered to the Sheriff of Davidson County, to be by him safely kept in the county jail of said county until Wednesday, March 23, 1898, when, within legal hours, and in the manner prescribed by law, he will be hanged by the neck until he is dead.