111 Tenn. 368 | Tenn. | 1903
delivered the opinion of the Court.
The plaintiff in error was jointly indicted with one Perry Meyers for the killing of John Davis and Grant Seals on the evening of the seventh of June, 1902. Subsequently Meyers asked a severance, which was granted him by the court. About the same time the State entered a nolle prosequi as to the killing of Grant Seals, and then placed the plaintiff in error on trial alone for the homicide of John Davis, the result of which was his conviction of murder in the first degree. Motion for a neAv trial having been overruled, the case has been appealed to this court, and many errors are assigned upon the action of the circuit judge.
Immediately after the killing of Davis and of Seals, the record discloses that both Legere and Meyers were arrested upon a warrant charging them Avith the murder of these men. At the coroner’s inquest held the day folloAving the arrest, Meyers testified he had been with Legere and the deceased during the day of the killing, but that neither he nor Legere had anything to do with it. Subsequently, upon the preliminary examination before a magistrate, he was examined, and again, under oath, reiterated the statement as to the innocence of himself and of Legere of the crime charged against them. On both occasions he gave a detailed account of what occurred while in company with the murdered men, and of the separation of Legere and himself from them while they were still alive, and of their acts and movements during the evening and night folloAving this separation.
As. a result of this preliminary examination, both these parties were held to answer the charge of murder
He further swore that the testimony which he had given under oath at the coroner’s inquest and the preliminary examination as to the innocence of Legere was given under duress, that, immediately following the homicide, Legere had extorted from him a promise to testify as he did, under a threat that he would kill him
The action of the court in admitting this corroborative testimony has been made a ground for the first assignment of error in this court. That there was error in this, we have no doubt. The general rule is, where evidence of contradictory statements is offered to impeach the credit of a witness, testimony that on former occasions he made statements consistent with those made by him on the witness stand is inadmissible. ' This seems to be the rule in England at this time. The courts in America have grafted certain exceptions upon this rule, and so fixed are they that it may be considered now that of themselves they constitute an independent rule. And so, it may be said, it is now established in this country that where it is charged the testimony of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive of personal interest, it may be supported by showing he had made a similar statement before that relation or motive existed. However little support such testimony may give to the impeached witness, yet it has been held to be
While it “sometimes is a matter of nice judgment to determine that no motive existed at a given time to misrepresent the facts” (Spurlock v. Brown, 91 Tenn., 240, 18 S. W., 868), it is not so in the present case. At the time these statements relied upon as being confirmatory were made, there was every temptation for the witness to falsify the facts. He was still in the hands of the law, resting under an indictment for this murder, and
The inadmissibility of such testimony is clearly announced in Queener v. Morrow, supra. That was a case where an effort was made to corroborate two witnesses who were assailed upon the ground- of their general bad reputation, and also by proof of previous contradictory statements. To sustain their credit, the plaintiff, who had produced them as witnesses, was permitted to show previous declarations consistent with those given in evidence, but made subsequent to the contradictory statements in question.
The court, after agreeing to the reasonableness of the rule as to the admission of such testimony within proper limitations, said: “To allow consistent statements, for the purpose of giving support to the credit of the witness, made after the contradictory representations by which it is sought to impeach him, would be to put it in the power of every unprincipled witness to bolster his credit, and perhaps escape the just consequences of his own false representation „and tergiversation. And it would be still worse to hold that the statement of an arraigned felon, in vinculis, offered,'perhaps, as a bribe to his discharge, and made after the contradictory state-
Upon reason as well as upon authority, we hold the exception made to this testimony by the plaintiff in error was well taken, and that the circuit judge was in error in permitting it to go to the jury.
We think the circuit judge was also in error in his instruction to the jury as to the effect of testimony submitted by the defendant below as to his defense of an alibi. On this subject his charge was as follows: “The defense of an alibi isi very conclusive, if certainly, clearly, and fully established; but it can only be conclusive when taken as true, and it is shown that there was no possibility of presence at the time or place- of offense, when that is necessary. The defense of the alibi is liable to abuse not only when a design exists to practice a fraud on the State, but often, where that design does not exist, by ignorant mistakes as to the particular hour at issue, and by reason of lapse of time; and I therefore caution you agáinst this abuse to which the defense is exposed. The evidence of an alibi does not exclude the absolute.possibility of presence at the time and place of the offense, to be 6f some value. It can be admitted and considered for what it may be-worth. If it renders it very improbable that defendant could have been present, it should be considered, in connection with
It is insisted that this instruction was vague and misleading, and that parts of it were the equivalent of telling the jury that they must be conclusively convinced that the defendant was not present at the commission of the crime alleged, and that it was incumbent on the defendant to show conclusively that it was impossible for him to have been present at the time and place, before this defense would he of any avail. While we do not think the instruction is amenable to the severe criticism to which it has been subjected, or that any part of it, when taken in its proper connection, will bear the construction thus put upon it, yet we do not think, in view of the fact that the defense rested largely upon the claim of an alibi, and there was much testimony tending to support this claim,,the law on this subject was as distinctly put to the jury as the defendant had a right to demand. The rule on this subject as laid down in Davis v. State, 5 Baxt., 617, Wiley v. State, Id., 662, and Jefferson v. State, 3 Shannon’s Cas., 330, and approved in many other cases, is that, “where the proof fairly raises the defense of an alibi, the jury should be instructed that if this proof, in connection with the other proof in the case, raises a reasonable doubt as to whether the accused was at the place of the homicide, or at a different place, the defendant should be acquitted.”. As has been said, “This is a sound rule, and ought to be given to the jury in direct and unequivocal language.”
There can be no doubt the trial judge was in error in supposing his jurisdiction over the case was exhausted by the grant of an appeal. The whole matter was still in the breast of the court, and the proper practice would have been for him to have set aside the order granting the appeal, and to have given time to the counsel to present their affidavit showing, if they could, the separation of the jury during their consideration of the case. There being no appearance of bad faith upon the part of counsel in making this motion, and it being stated that knowledge of the fact of separation had just come to them, it was a proper case for the court to have exercised its right to set aside the grant of appeal, and to give an
We do not consider other assignments that are made, as for these already indicated there must be a reversal and remand.