126 Tenn. 40 | Tenn. | 1912
delivered the opinion of the Court.
The first assignment is that the verdict' is not supported by the evidence.
On Friday night, July 7, 1911', plaintiff in error and Tommy Dolan met in the saloon of Albert Mancini, on Madison street, in the city of Memphis. They had had no previous acquaintance. Plaintiff in error was a banker, merchant, and farmer, whose home was in Haynes, Ark., but his family had been living for a year or two at the Graham Flats in Memphis, and he was over on a visit to them. Tommy Dolan had been, at one time, a jockey, subsequently a barkeeper, and then a stage carpenter. At the time in question, however, he was not engaged in any business; the Orpheum Theatre, at which he had been employed, having been closed for the summer. These two men drank together, and, being well pleased with each other, decided to' go upon a round of visits to the houses of prostitution in the city. Plaintiff in error secured a carriage driven by one Buster Davis, a colored man. Under the direction of Dolan he drove to various houses of the kind referred to, but we need not detail the orgies through which they passed. Suffice it to say that they were out all night, and did not separate until the next morning about five o’clock.
Dolan was a small man, weighing about 145 pounds; but he was "very strong and very active, and a noted fighter with his fists. He was considered the best man in Memphis physically, for his size and weight. He was thirty-five years old. Plaintiff in error was fifty-three years old, and a little shorter than Dolan, and 'perhaps a little heavier. His left arm was partially paralyzed.
Plaintiff in error testifies that he went ont again that night with Dolan, making the round of houses of ill repute, but says that he does not remember very much that happened, because he was under the influence of drink, and thinks that he had been doped. Ho one else testifies as to his being with Dolan Saturday night. There is a witness who testified to having seen him alone in-a saloon known as the “Hole in the Wall,” about
About half past four Tommy Dolan called on him wearing the pin in his tie, as before stated. This was Sunday, July 9, 1911. A bell boy of the hotel, William Works, testifies that he carried them ice water several times during the afternoon, and saw no evidence of unfriendliness between them. He states one or two facts that illustrate the situation at that time. He says that plaintiff in error wrote a note to his wife, asking her to meet him at the train that evening. This note was handed by plaintiff in error to Dolan who read it aloud. We infer that it was handed to Dolan, because plaintiff in error was uncertain of his handwriting after the experiences through which he had been, and wanted to see if the writing could be read. Another
Plaintiff in error’s account of the matter is that after the meal was over he and Dolan turned to the bow window looking out on Third street; that Dolan was flirting with some girls going by, and finally succeeded in getting two to answer his signal; that he told plain
When the police came in, Dolan’s body was found ly-iug on the floor with his head under the bed. The body was lying with the head to the west, or to the southwest, and the feet to the northeast. One of the policemen said: “He is still breathing.” Thereupon plaintiff in error said: “I have still two loads in my pistol; give it to me, and I will finish him” — or words to- that effect. Plaintiff in error denies this, but the State’s proof is overwhelmingly against him. Plaintiff in error was also asked why he shot Dolan, and replied, because the latter had stolen his diamond. H'e then made no claim of a struggle, or any attempt on the part of Dolan to do him violence.
The services of an undertaker were employed, and the body was taken to his establishment. There a careful investigation of the wounds on the body was made. One bullet entered the back of the neck, just above the collar button, and came out just below the point of the left jaw bone, making a jagged, ugly wound.
It is now necessary to state the situation of the room and the location of the furniture. The window of the room looked out east on Third street. The door was on the western side of the room. There was a dresser near the northwestern corner- of the room. The bed stood in the southwestern corner, the head up against the south wall. The table on which the dining service rested was a few feet from the window. On the- north side of this table was the chair of the plaintiff in error, and on the south side the chair occupied by Dolan.
The evidence does not show how the body came to the floor with the' head under the edge of the bed. In order to understand this, it will be necessary to now advert to the interval that elapsed between the shots that were fired.
A considerable interval elapsed between the first and second shots; another considerable interval, though less than the first, between the second and third shots; while the third and fourth shots were close together. This can be best understood by quoting from the testimony of Dr. Longinotti, the proprietor of the hotel, and that of N. O. Stovall, the clerk at the hotel.
Mr. Stovall said:
“Q. About what time did the supper go up, if you remember? A. About five-thirty. Q. I will ask you what you nest heard from the room, or at the time, if anything? A. Well, about six o’clock, or a little before, Mr. Hughes called down and asked me to send his bill up. Q. Six, or a little before, Hughes called down and asked you to send his bill up? A. He said that he thought he was going away that evening. Then about six-thirty or six-forty I heard what I thought was an auto tire at first; then ábout a minute and a half after*61 that I heard another shot, and then the telephone hell rang, and I answered it, and he salid: ‘Send a sergeant, or a captain, or some one np to the room.’ I turned and telephoned to a police station, called the number, and told them to send some one to the hotel right away. About that time I heard two more shots. Q. At that time you heard two other shots? What room was calling you by the ’phone? A. Room No. 27. Q. Hughes’ room? A. Yes, sir. Q. Did you recognize his voice at the ’phone? A. It seemed the same as the calls I had had before during the day. Q. And you heard one shot, and in a minute and a half you say you heard another shot? A. Yes, sir; then the telephone rang. Q. Then the telephone rang. Then you telephoned. After you got his message to send a sergeant, you telephoned over to the police station and told them, and while telephoning, or after you had finished telephoning, you heard the other shots? A. About the time I had finished.”
Dr. Longinotti testified that he was occupying room No. 24 that afternoon, and had just taken a bath. He continued: “I had a bath and stayed there. I was undressed, and I came out and commenced dressing and while I was half dressed I heard the first explosion, which I supposed was a tire, of course, and I walked to the window, and looked up and down the street to see what auto it was, and where it was, and I didn’t see any commotion, and I didn’t hear any car out there, and I turned back in the room, commenced dressing, and about that time there was another explosion, and then I went again to the window and looked out, because it
Practically all the witnesses agree that there was a very distinct interval between the first and second shots; but defendant’s witnesses say the second, third, and fourth shots came quite close together'. However, the weight of the evidence is in favor of the testimony of the two witnesses we have quoted.
It is clear from the testimony of Mr. Stovall that plaintiff in error 'had already shot Dolan twice before he telephoned, because only four shots were fired in all, and two of these were heard after he had telephoned. The last two shots, we think, were fired after Dolan’s body reached the floor. The testimony shows, as we have already stated, that one of the balls was imbedded in the floor where the body lay, and was subsequently dug out, and shown in the evidence. The other ball that entered the breast did not pass through the body. After these shots were fired into Dolan’s breast, he could not have gotten upon the chair. Therefore we think it very manifest that the first shot fired was that which struck Dolan in the back of the neck and shattered his spine. After collapsing, and bleeding upon the floor in front of the chair, as we have already stated, he could only have gotten out of the chair by falling from it, or being pushed from it by plaintiff in error. The evi-
Plaintiff in error is unable to explain the shots in the breast in connection with the bullets found in the floor and the shot in the back of the arm. He meets these statements by the fiat denial that he shot Dolan in the back, or that he shot him after he was down on the floor. He says the whole thing occurred in excitement, and he
Plaintiff in error says that there was a struggle. He is supported in this by the testimony of an old friend and schoolmate, who says that he saw him very soon af-terwards, while the policemen were taking him to the station, and that plaintiff in error’s collar was torn half off, and by the testimony of plaintiff in error’s son, who says that he saw his father the next day, and that his neck and face were bruised and scratched. Several witnesses, however, on the part of the State, testified that he had no bruises or scratches, and that his collar was not tom. In addition, several testified that the room showed no signs of a struggle. Moreover, it is difficult to believe that plaintiff in error, with one partially paralyzed arm, at fifty-three years of age, could have succeeded in releasing the pistol from the grasp of a young man of thirty-five, who was very athletic, very active, and a practiced contestant in physical encounters. It is certain- that, if there had been such a struggle, the table, with its tray of dishes, and the chairs, would have given evidence of it. The great weight of the evidence is in favor of the contention of the State on this subject.
If in any view our conclusions are wrong as to the manner in which all of the shots were fired into the body of Dolan, it is at least certain that one of them was fired into the back of his neck, either when he was standing with his back to plaintiff in error, or when he was sitting in a chair with his back to him, and that another shot was fired into Dolan’s breast as he lay upon his back on the floor. Either of these would sustain the verdict, as each was a mortal wound.
The jury, therefore, were well warranted in finding the plaintiff in error guilty of murder in the first degree. We do not know on what they based the finding of mitigation, unless on the age of the plaintiff in error
The second assignment of error is as follows: “The court erred in admitting photographs of the scene in the room where the hilling- occurred at the Cordova Hotel, including the furniture as arranged by the negro witness, Works, which photographs were used as an ocular demonstration before the jury of the exact situation at the time of the alleged killing. These photographs were two in number — one representing the chairs, table, and bed and their relative positions at the time the negro Works last saw these articles of furniture when he served supper to Hughes and Dolan, and that also showed the figure of a man, not Dolan, lying on the floor with his head under the edge of the bed; and the other photograph showed the figure of a man, representing Dolan, sitting in a chair by a table next to the bed, with a cross-mark on the back of his neck at thé center of which it is claimed by the State a bullet entered, and another cross was shown in the photograph on the framework of the window, where it is alleged and presumed that the shot which passed through Dolan’s neck found lodgment.
“These photographs were taken long after the homicide, and are based solely upon the memory of the witness Works, who was not present at the killing, but who proposed to give the exact positions of the deceased and defendant a half hour before the killing occurred;
The first photograph referred to in the foregoing assignment is known in the record as Exhibit A. This shows the room, bed, table, chairs, and the position, of Dolan’s body on the floor. It was proven to be a correct representation of these objects by William Works, an employee of the hotel, who was familiar with the room, and saw the location of the table, chairs, and other furniture about half an hour before the homicide, and saw them immediately after, and testified they were unchanged, and he also saw the position of the body on the floor. He was corroborated by other witnesses as to the location of the body; likewise as to the location of the objects of furniture immediately after the homicide. In brief, Works testified that he knew the position of the various objects referred to, and that the photograph reported them correctly. This was sufficient for the admission of the photograph in evidence. The fact that the photograph was not taken until some time had elapsed after the homicide was not a circumstance of sufficient weight to exclude it. It was introduced only for the purpose of showing the witness’ recollection of the position of the objects mentioned at the time
The fact that the photograph was not proven by the photographer who made it was immaterial. McGirr Sons & Co. v. Babbitt, 61 Misc. Rep., 291, 113 N. Y. Supp., 753; Smith v. Central Vermont Ry. Co., 80 Vt. 208, 67 Atl., 535; McKarren v. Boston & N. St. Ry. Co., 194 Mass., 179, 80 N. E., 477, 10 Ann. Cas., 961, and note; Consolidated Gas, Electric Light & Power Co. v. State, 109 Md., 186, 72 Atl., 651; Indiana Union Traction Co. v. Scribner (Ind. App.), 93 N. E., 1014. The accuracy of photographs may be proven by any one who knows the fact. Thompson v. Galveston H. & S. A. Ry. Co., 48 Tex. Civ. App., 284, 106 S. W., 910; Consolidated Gas, Electric Light & Power Co. v. State, supra. They are admissible in evidence Avlien shown to be reasonably accurate representation of the place or thing in ques
We are referred by counsel for plaintiff in error to the case of Fore v. State, 75 Miss., 727, 23 South., 710, as holding in effect that the use made of the photographs in the present case was not allOAvable. If such be the proper construction of that case, it is opposed by the
And on the general subject see Carlson v. Benton, 66 Neb., 486, 82 N. W., 600, 1 Ann. Cas., 159, and note; State v. Matheson, 130 Iowa, 440, 103 N. W., 137, 114 Am. St. Rep., 427, 8 Ann. Cas., 430; Higgs v. Minn., etc. R. Co., 16 N. D., 446, 114 N. W., 722, 15 Ann. Cas., 97, and note, 15 L. R. A. (N. S.), 1162, and note; Dederichs v. Salt Lake City R. Co.. 14 Utah, 137, 46 Pac., 656, 35 L. R. A., 802, and note.
It is conceded in the assignment of error that the photograph Exhibit B, the second one'mentioned in the assignment, was likewise taken under an arrangement of objects in the room made by the witness Works, according to Ms memory, as in the case of the photograph Exhibit A, and the same observations made with regard to Exhibit A apply to this photograph. The statement in the assignment to the effect that there was no proof that the positions of the objects were not changed is incorrect, since the witness Condon testified that the picture showed the objects correctly when he arrived there immediately after the homicide, and Works testified that when he returned, which was also immediately after the homicide, the objects in the room were unchanged in their position.
This assignment is not well taken and is overruled.
The third assignment was as follows:
“It was error in the court to permit, over the objection of the defendant, in the presence of the jury,*72 during the testimony of the surveyor Richardson, the assembling and arranging of the furniture, said to have come from room 27 of the Cordova Hotel, including the carpet, ta,ble and chairs, together with an alleged reproduction of the window, so that the witness might testify as to the placement of these articles of furniture which had been assembled in the presence of the jury, and thus deliver his testimony to the jury. If this evidence was competent at all, which we deny, it was competent as original evidence, and not in rebuttal.
“This proof permitted the attorney-general to construct his theory of the case, based upon the arrangement of the furniture in the room, the position of the, body in the chair and on the floor, in alleged rebuttal, over the objection of the defendant, when there was nothing in the testimony to make this proof in any sense rebuttal. But the scene thus laid before the jury was incompetent for any purpose, and utterly unknown to legal procedure. It was misleading in its tendency, and highly prejudicial in this particular case; for the arrangement of the furniture was made by the witness Works, who confessedly was not present at the time of the homicide. It was used, as were the photographs, to supply the absence of proof, and show the conditions at the time of the homicide, which were not testified to by any witness in the record.”
This assignment must also, be overruléd. Evidence of the kind referred to is perfectly competent, and its introduction is supported by the same reasons which justify the admission of photographs. We know of no
It is stated in the' assignment that the evidence in question was not properly in rebuttal, but was original evidence. While the testimony might have been introduced as original evidence, it was not imperative that the State should take this course. It was equally applicable as rebuttal evidence, since it had a distinct tendency to overturn the defense offered by the plaintiff in error. Moreover, as said in Moore v. State, 96
The fourth assignment of error is based upon the action of the trial judge in permitting the attorney for the State to recall plaintiff in error before the jury after the defense had closed and the State was engaged in the introduction of its rebuttal evidence, and ask him the following question: “Mr. Hughes, at the station house, after this shooting, didn’t you tell Sergeant Lary Long of the police department, about between eight and nine o’clock, on Sunday, the 9th day of July, that Tommy Dolan had not stolen your diamond, but that a woman had, and Tommy had gotten it back from her?” To this question plaintiff in error replied: “Ho, sir; I never said such a thing to any one. I always believed that Dolan got my diamond, and I never said anything else to any one.” The State then put Lary Long upon the witness stand, and he testified that the plaintiff in error did make that statement to him at the time and place mentioned in the question. It is objected that the trial judge abused his discretion in permitting the
As conceded by counsel for the plaintiff in error in the court below, this was a matter entirely within the discretion of the trial judge. We cannot say that it was an abuse of his discretion. Certainly it was not necessary to recall the plaintiff in error, as a basis for asking Long about this matter, because plaintiff in error had already testified, in effect, that he believed that Do-lan had stolen his diamond, and if the question was material as to whether he believed that Dolan had stolen it, or had subsequently got it from a girl who had stolen it, the basis already existed in the evidence for asking Long the question. That is to say, the State, without putting plaintiff in error back upon the stand, might have gone into the question, and have contradicted the plaintiff in error, because he was not only a witness, but a party. He could not justly complain if the State gave him the opportunity of saying whether or not he had made such statement. No question is made as to the competency of the evidence. Treating it as compete)!! and material, it was certainly matter in rebuttal, not in chief, as complained by counsel for plaintiff in error.
The fifth assignment of error presents two points.
The first one is that the court committed error in refusing to permit the plaintiff in error to recall the witness Stovall, the clerk of the hotel, who had been examined by the State when putting its original case. What
The second point under this assignment is that the trial judge committed error in refusing to permit the introduction of one Gatewood, a street car conductor, after the State had closed its evidence in rebuttal. The purpose was to prove, by this witness, that he was the conductor on a street car on which the witness A. J. Me-
The sixth assignment is composite, embracing three objections, rather than one.
The first point is that the court erred in permitting the attorney for the State to inquire about former homicides and assaults with intent to kill. The evidence drawn from plaintiff in error on cross-examination was that, prior to the killing of Dolan, he had killed three
Further, the trial judge, in his' charge, said to the jury in reference to this subject:
“If the proof should show other charges against this defendant, which were determined in the defendant’s favor by acquittal, the jury cannot consider these for any purpose.
“If the proof should show certain charges not having proceeded to indictment, you may* only consider the defendant’s explanation of these as involving his moral turpitude, and not in any way as affecting his presumption of innocence in the case on trial.
“Where remote transactions are shown in the proof, and where it is shown that such transactions have long since been repented of and forgiven by the community, these transactions should not be considered by the jury' where reformation is shown. But where the inquiry relates to transactions comparatively recent, and any that may bear directly upon the present character and moral principles of the witness, you may consider with all the other proof in arriving at your verdict.”
The action of the trial court in respect of these matters was well within the authority of Zanone v. State, 97 Tenn., 101, 36 S. W., 711, 35 L. R. A., 556; Ryan v. State, 97 Tenn., 206, 36 S. W., 930, and Powers v. State, 117 Tenn., 363, 369, 97 S. W., 815.
The trial judge very conservatively limited this evidence to plaintiff in error’s character as a witness and as such it was only competent at the time it was intro
It was also objected, under this assignment that tbe trial judge permitted tbe widow of Dr. Scott, one of the men whom plaintiff in error killed in Arkansas, to remain in. the court room, after be bad opened court, and, in the presence of tbe jury, characterize a statement ma.de by Hughes as “an emphatic story,” as tbe defendant was being cross-examined. It is insisted that, when tbe attention of the court was specially called to tbe presence of this lady in tbe court room, and her remark, instead of ordering her removal, bis honor rather paliat-ed and excused her presence, saying “that if she did not repeat her offense she would be allowed to sit by tbe attorney-general and prompt him in tbe asking of questions.” It does not appear whether or not tbe jury heard tbe remark made by Mrs. Scott, or whether it was made loud enough for them to bear it. Tbe trial judge said that he did not bear it. It does not. appear that any one beard it, except tbe attorneys on tbe respective sides, and tbe stenographer. Upon tbe remark being made one of tbe counsel for tbe prisoner arose and excepted. There upon tbe court said: “Tbe jury will not consider any
There was no error in this matter.
It is insisted that the plaintiff in error was deeply prejudiced by the mere presence of Mrs. Scott in the court room, sitting by the attorney-general. It does not appear that she was placed by the attorney-general for the purpose of influencing the jury, and in the absence of such fact it was not improper that the attorney-general should have the benefit of such suggestions as he hoped to obtain from her with respect to the life of the plaintiff in error in Arkansas, as to which he was cross-examining the plaintiff in error. In addition, it appears that plaintiff in error was tried .in Arkansas and ac
It is also objected, under this assignment, that the court erred in permitting the attorney-general to remark in the presence of the jury that he knew something of the facts of the killing of Dr. Scott. It was said that this was “a plain intimation in the presence of the jury of the guilt of Hughes of that homicide.” What really happened was this: During the cross-examination of plaintiff in error, while the Scott murder was the subject of the examination, the attorney-general said to the court: “He volunteers an explanation. Cannot I ask him something about the explanation? I happen to know something about the facts myself.” The court replied: “Let the witness testify that is on. the stand.” This was the whole matter. While the remark made by the attorney-general in the last sentence quoted was improper, it contained no such statement as insisted by counsel for the plaintiff in error, and we cannot say that it was harmful to the plaintiff in error’s case, certainly not sufficiently so to warrant a reversal, and especially in view of the fact that the trial judge subsequently instructed the jury to pay no attention to the matter at all, because he had been acquitted.
Under the same assignment of error, a motion is referred to which was made by counsel for the plaintiff in error before the case was finally, submitted to the jury, under which the court was asked to withdraw all of the testimony about former homicides and assaults.
The seventh assignment of error is in the following language:
“For misconduct on the part of the attorney-general in causing to be published in the Commercial Appeal, a daily newspaper published in the city of Memphis, Shelby county, Tennessee, the affidavit of H. G. Tro-baugh, which affidavit declared that a slush fund had been created for the purpose of bribing jurors, so as to insure a favorable finding for the accused; this publication having been made when the venire was in court, from which a trial jury was being selected.
“And for additional misconduct on the part of the attorney-general in stating in open court the following: That a Front street merchant, a friend of his, had said to him that there were people over here from Arkansas, who wanted to know if he could be reached with money to drop the Hughes Case; this statement being made when the trial jury was being selected, the venire being in attendance upon the court and was published in the daily newspapers of Memphis, and given wide prominence.”
The affidavit referred to was made by Mr. Trobaugh and handed to the attorney-general, and from his office passed to the newspapers of Memphis. Such publication ought not to have been made. The attorney-general stated that his ground for it was his belief that its publication ymuld scare off intending bribe takers, if there
It not appearing that the plaintiff in error was in any wise prejudiced by these matters in the trial of his case, this assignment must be overruled.
The eighth assignment is:
“The court erred in denying the motion of accused for change of venue or a continuance of his case to a future term of the court, which motion was predicated on the prejudice and excitement in the public mind resulting from publications of the affidavits relating to the slush fund and the declaration of the attorney-general in open court to the effect that an effort had been made to bribe him to drop the prosecution.”
What has been said in disposing of the preceding assignment sufficiently covers this matter. We may add that the only evidence of any excitement produced by the newspaper articles referred to was an affidavit filed by plaintiff in error, and this was met by an affidavit of the attorney-general showing the contrary. The matter of change of venue is largely in the discretion of the trial judge, and we do not think he abused that discretion in the present instance. Whatever stir may have been caused by the publications concerning the supposed attempt at bribery, this must have been quieted by the publications of subsequent date showing that there was nothing in the matter.
"The ninth assignment is :
“The court erred in removing from the jury, jurors Lawhorn, and Kelly, after said jurors had been accepted*87 as members of tlie trial jury, and in bolding tbe juror Paine incompetent. These jurors, Lawhorn and Kelly, bad been selected by tbe defendant, and tbe record shows defendant exhausted bis challenges, and was compelled to accept a juror not of his selection.”
Tbe jurors Lawhorn and Kelly were removed by the trial judge before the jury was completed, and, of course, before it was sworn. The trial judge acted correctly in this matter. Tbe deputy sheriff in charge of the jury heard Lawhorn say to Kelly, when they were apart from the others, that he had made up his mind about the matter, and Kelly replied, “I have too.” The deputy sheriff cautioned them that they were acting com t-rary to the instructions of the trial judge, and reported the matter to him. He caused these two jurors to be examined in open court, separately and apart from each other, and out of the presence of the other jurors. They both denied that they were talking about the case, or that they had made up their minds about it; but they made conflicting statements, and so testified as to convince the trial judge that they were talking about the case, and had said to each other that they had agreed upon how they would render their verdict. The act of jurors in deciding a case before any evidence is heard cannot be sufficiently characterized to express its enormity. To say that it is prompted by prejudice is to state the matter mildly. Such conduct is indicative of either prejudice or corruption. It is true the evidence was not clear that the jurors in question were guilty
As to the juror Paine, there is nothing further in plaintiff in error’s brief, except what, appears in the assignment. There is no reference to the record, and under the rules we might disregard this entirely. However, Ave have read what the record contains upon this subject, and find no error in the action of the trial judge. Paine was summoned as a Arenireman, and was examined on his voir dire, and held incompetent by the trial judge, and was not tendered to either party. Certainly the case would be very extraordinary that would justify a complaint about such action. Moreover, we think the trial judge acted correctly on the facts stated by the venireman.
The tenth assignment of error presents two points: First, that the court erred in allowing the witness John Exnicious to testify, inasmuch as the rule had been asked for by the parties and ordered by the court excluding all witnesses from the court room, and the witness Exnicious Avas present in the court room assisting the attorney-general by suggestions, also aiding him in the selection of the jury and obtaining and presenting proof;
As to the first point. Where an affidavit is- filed, stating sufficient grounds for the rule, it is the duty of the court to grant it, and his failure to do so has been held error. Rainwater v. Elmore, 1 Heisk., 863; Dougherty v. Shown, 1 Heisk., 302. Where no affidavit is made, the duty of the trial judge is not so stringent. Same authorities. It has been held that, although the rule be granted, a party to the cause who intends to be a witness need not go under it (Heaton v. Dennis, 103 Tenn., 161, 52 S. W., 175); or an attorney of the parties (Wisener v. Maupin, 2 Baxt., 342, 356-357); or one directly interested in the result (Adolf v. Irby, 110 Tenn., 222, 75 S. W., 710) ; or an officer of a corporation whose presence is necessary for assistance to the attorney of the latter in presenting the case (Lenoir Car Co. v. Smith, 100 Tenn., 127, 42 S. W., 879). It has been held that, where the rule has been properly granted, no reversal will be entered in this court because a witness was introduced on the trial who had not complied with the rule, except in a very extraordinary case. Smith v. State, 4 Lea, 428, 430; Baxter v. State, 15 Lea, 666; Pile v. State, 107 Tenn., 533, 64 S. W., 477; Nelson v. State, 2 Swan, 237, 258. To the same effect, see Holder v. United States, 150 U. S., 92, 14 Sup. Ct., 10, 37 L. Ed., 1010. It is a matter that goes to the credit of the witness, and likewise he may be punished for contempt. Same authorities. In addition, the rule is general that the court will not reverse on mere points
Mr. Exnicious was a detective attached to the office of the attorney-general of Shelby county, whose business was to assist that officer in preparing cases, and he would fall within the same exceptions which protect the officers of a corporation. However, we think his evidence was in rebuttal, and such witnesses do not go under the rule. Heaton v. Dennis, supra.
What has been said disposes of both of the points made in the assignment.
The eleventh assignment raises the objection that the evidence of the witness St. George Richardson was not competent in any view, but, if competent at all, only in chief, and not in rebuttal. This witness testified to certain experiments which he made with the pistol which was used by plaintiff in error in killing Dolan. The purpose of the experiments was to show how far the pistol would powder-burn cloth similar to the shirt which Dolan wore. Experiments were made at four, twelve and twenty inches, and so on. At a distance of four inches it was show that the cloth would take fire; at twelve inches there would be a slight ignition, at twenty inches, thick powder specks; at twenty-six inch
As to the other point, we are of the opinion that the evidence was clearly in rebuttal.
The twelfth assignment is based upon the affidavit of one of the jurors, as follows: “That the first ballot taken by the jury was to determine whether or not the accused was guilty of murder in the first degree; that this ballot resulted in a difference of opinion; that this condition continued up to Friday, March 1st, at which time the above-mentioned verdict was reported in open court; that those members of the trial jury who favored convicting the accused of murder in the first degree stated to jurors who opposed their position that the accused was a very wealthy man; that he had killed a number of men, and had gone unpunished for his criminal acts; that unless a verdict of murder in the first degree was reported the accused would be accorded bail; that in that event he would go unpunished for the killing of Tommy Dolan, as he had for the killing of his other victims; that the accused was an old man; that he would not live twenty years in prison; that by returning
■The foregoing affidavit was made on the 5th day of April, 1912. On the next day he made another affidavit, as follows: “That before any deliberations in the case were entered into, the- foreman, Mr. Miller, suggested each one of the jurors give an expression of his opinion concerning the facts in the case, whereupon we debated the facts, circumstances, and the law in the case. Two ballots were taken before we went to the hotel, and there was a failure to agree. Then we went to the hotel. When Mr. Miller got there, as foreman of the jury, he told us that it was our duty, under the law,
W. W. Miller, the foreman of the jury, referring to the second affidavit of Cross, said, in his affidavit: “I have read over the above statement made by Juror Cross, and the statements made in there in reference to what was said and took place in the jury room are substantially true. I want to add that all during the deliberations I tried to impress upon the jury that it was
As to the statements contained in the first affidavit of Cross, it is proper to say that, although the wealth or poverty of the plaintiff in error was a wholly immaterial consideration, yet incidentally there was evidence upon the subject to the effect that he was a man of wealth. lie gave his occupation at the police station as that of a capitalist. There was also evidence as to former homicides by plaintiff in error, brought out on his cross-examination, as stated under a previous assignment. There was also evidence of an application for bail. The first affidavit of Cross merely stated arguments which he alleged had been made to him by other jurors. Such affidavits are inadmissible. It has been so held by this court in a capital case. Lee v. State, 121 Tenn., 521, 555, 116 S. W., 881 et seq. In addition, the second affidavit of Cross practically emasculated the first, and the affidavit of Miller completed its destruction.
The foregoing are all of the errors assigned.