65 Tenn. 452 | Tenn. | 1873
delivered the opinion of the court.
The prisoner was indicted for the 'murder of Martin Demoss in Lauderdale county, and was tried and convicted of murder in the second degree. His motion for a new trial and in arrest of judgment were overruled and judgment rendered, from which the prisoner has appealed to this court.
The bill of exceptions shows that the State examined three witnesses, two of whom were immediately present and witnessed the homicide; the other was sixty or seventy yards distant.
The following is a brief statement of the facts deposed to by these witnesses: The prisoner, in company with Lacy (one of the witnesses), was on his way home from the “ cross-roads,” late in the evening of Wednesday, the 15th of November, 1871. They entered a lane running north and south which intersected with another running at right angles. The deceased, with his brother (one of the other witnesses), was in
The prisoner introduced a number of witnesses by whom he proposed to prove the following facts in substance: That the deceased had previously manifested very bitter and hostile feelings towards the defendant, and on Wednesday before the homicide had attacked him in a public road, and compelled him to seek safety in flight, and it was with difficulty the deceased was induced to desist by the interference of the by
The judge sent the jury from the room when the testimony was offered; heard from the witnesses the testimony proposed as above, and held it all inadmissible. Except the court held that the defendant might prove the existence of unfriendly feeling between him and the deceased, but nothing more, it is manifest that the effect of this taken alone would be more against the prisoner than in his favor. This raises the question for our determination. In the first place we think the practice adopted by the judge in sending the jury from the room while the question as to admissibility of the testimony was being discussed not only not objectionable, but highly commendable. If the testimony was incompetent, it was certainly not error to refuse to allow the jury to hear the defendant propose to make the proof. The question, however, is, was this testimony, or any part of it, admissible. The reasoning upon which the judge acted, and the argument made here with much earnestness in support of his ruling, may be stated as about this: That no previous threats, or acts of hostility, however so violent, will justify the party in slaying his adversary. To excuse a homicide the danger of life or great bodily harm must be real, or honestly believed to be so, and must be imminent and apparent at the time. That there must be some overt act at the time indicating a present purpose upon the part of the deceased to take the life of the defendant or do him some great bodily harm. That it is only when the
We fully assent to the first proposition maintained by the Attorney General, that is, previous threats or acts - of hostility against the defendant, however violent they may be, will not of themselves justify him in seeking and slaying his adversary upon the assumption that it is necessary to do so in order to save his own life from the threatened danger. To excuse the slayer he must act under an honest belief that it is necessary at the time to take the life of his adversary in order to save his own, and it must appear that there was reasonable cause to excite this apprehension : See Rippy v. The State, 2 Head., 217; Williams v. The State, 3 Heis., 376. There are authorities holding a somewhat different doctrine, but we cannot yield to them. (Kentucky cases.)
But the question here is, what evidence may be heard by the jury in order to enable them to deter
But the argument of the Attorney General is that this testimony should only be heard when the facts attending the homicide show that it might justify the defendant’s conduct; that it is the duty of the judge to say whether, in the facts attending the homicide, there is any evidence showing an overt act of the deceased at the time, if not, the testimony should be
It would seem very clear that no amount of previous threats would justify a jury in such a case in acquitting a defendant upon the ground that he then acted under fear of his life, but whether, in such a case, the judge should exclude the evidence altogether we do not decide. Such, at any rate, is not the present case. The rule that it is the province of the judge to decide if there is any evidence is, no doubt, a correct one when properly applied; but here, for the judge to decide that there was no evidence of an overt act or hostile demonstration upon the part of the defendant at the time of the homicide sufficient to admit proof of previous threats, was necessarily to decide the very question upon which the ease turned, and which was the peculiar province of the jury. The evidence of the facts attending the homicide was before the jury. What was the effect of this evidence, what results were established by it? were questions for the jury, and the judge was not authorized to decide that in the facts deposed to by the witnesses there was no evidence of passion, excited by adequate provocation, to reduce the offense to manslaughter. However clear these propositions may have appeared to the judge, they are nevertheless questions for the jury. While the judge was in form deciding that there was no evidence of the given proposition, he was in effect
We are not aware that this direct question has been before this court. The case of Harman v. The State, 3 Head, 243, relied upon by the Attorney General, was a conviction for an assault and battery. The evidence rejected in that case was offered to show the bad, and dangerous, and desperate character of the prosecutor, of his numerous assaults upon other parties. It was held that the evidence was properly rejected. Judge Wright said: “In an indictment for an assault and battery the character of the prosecutor can, as we apprehend, never be made a matter of controversy, except when involved in the res gestae, since the fact that he may be an overbearing, tyranical, and dangerous man, in the habit of assaulting others, furnishes no legal excuse to the defendant to assault him. The defendant may prove that he was acting in self-defense, or he may exhibit whatever provocations were given to him by the prosecutor, but he cannot set up general reputation, or the conduct of the prosecutor towards others as a defense. When, however, it is shown that the defendant was under reasonable fear of his life, or great bodily harm from the prosecutor, the prosecutor's temper, in connection with previous threats, etc., is sufficiently part of the res gestae, to go in evidence as explanatory of the state of defense in which the defendant placed himself,” citing Wharton Cr. L., 234-5; 3 Iredell, 424; Wright v. The State, 9 Yerg., 342; and he adds, “that the proof of the prosecutor's bad temper would have been relevant and admissible
In the case of Williams v. The State, 3 Heis., Judge Nicholson, in reviewing the facts, held that the conviction of murder in the second degree was well-sustained by the evidence, upon the ground that it did not appear that at the time of the homicide the deceased was making any demonstration against the defendant, or that the defendant acted under apprehension of danger to himself, and yet the evidence of previous hostile demonstrations and threats by the deceased were considered relevant, and their effect discussed.
It is true, no objection appears to have been made to the testimony in that case. This seems to have been the course in other cases. See Copeland v. The State, 7 Hum. In fact, we think the practice has been very general to admit of proof of this character, and leave its effect to be determined by the jury with proper instructions.
We are not to be understood as intimating any opinion upon the facts of this, or to the effect that a jury ought to give to evidence of the character offered in connection with the facts immediately attending the homicide. *
The principle of self defense, as laid down by this court in the case of Granger, and subsequent cases modifying that case, while of vital importance, has, no doubt, resulted often in the acquittal of guilty men; but judges are not on this account to take away from the jury the trial of the accuséd.
We confess the weight of the argument that if the judge can see that proof of previous threats and hostile demonstrations should constitute no defense to the prisoner, why permit the evidence to be heard. And we do not say that cases may not arise, such as the case supposed by the Attorney General, where it appears absolutely impossible that the defendant could have acted under a fear of danger from the deceased at the time, that the court might not properly refuse to allow evidence of previous threats. We leave cases of this character to be decided when they arise.
But such is not this ease. It was not impossible that the defendant could have acted under an honest fear of his own life. We express no opinion upon the facts farther than this: The effect the jury should give to the proof of previous threats, etc., would depend upon their opinion as to the entire facts and circumstances. They should be fully instructed upon the principles applicable, and particularly that previous threats, etc., no matter of what character, would not of themselves justify the defendant in slaying his adversary.
We think the error of the court below consists in this: The judge undertook to decide upon the effect
We hold that the proof of previous hostile demonstrations upon the part of the deceased towards the defendant, as well as previous threats, and the character of the deceased, which might illustrate how much importance should be. allotted to his threats, were all properly admissable, but the proof offered of particular acts of hostility towards other parties was properly rejected, and for the error of the court on this question, we reverse the judgment and award a new tidal.