96 Tenn. 209 | Tenn. | 1896
The plaintiff in error was tried and found guilty of the murder (in the second degree) of one Pemberton, and he has brought his case to this Court for review. A number of errors of law are assigned by his counsel to the action of the Court below. These will be considered in the order in which they were presented in argument and brief.
1. It is insisted that the record fails to show that the officers placed in charge of the jury, during the trial of this cause, were properly sworn. We think this objection is not well taken. The minute entry on this subject is as follows: “Upon the respite of the jury it was placed in the charge of W. H. Alexander and J. W. Primm, two deputy sheriffs,” etc., “who were sworn according to law to attend and -wait on them.” It is only necessary to say that similar recitals have been heretofore considered by this Court in Taylor v. State, 6 Lea, 235, and Lancaster v. State, 91 Tenn., 286, and were held to be sufficient.
2. It is urged that the trial Judge committed a reversible error in permitting Drs. Frees and Martin to testify with regard to an experiment which they made a few days before the ^ trial, in order to as
3. Again, it is contended that the trial Judge erred in admitting the paper prepared by one Saunders, soon after the difficulty, as the dying declaration of Pemberton. The objection to the introduction of this paper in the Court below was general in its character. We repeat what has been heretofore said by this Court, that it is doubtful “whether a general objection would, in any case, be sufficient to put the Court below in error.” Reilly v. English, 9 Lea, 20. ‘ ‘ Upon principle, it is the duty of a party objecting to evidence to communicate, at the time, to the Court and the opposite
4. The trial Judge permitted certain statements of the deceased, made soon after the affray and with regard to it, to be put in evidence, and this-is assigned as error. The witnesses who testified as to these statements said they were made in the presence of and within the hearing of the prisoner, and that they were uncontradicted by him. We think the testimony was competent. “If A, when in B’s presence and hearing, makes statements which B listens to in silence, interposing no objection, A’s statement may be put in evidence against B whenever B’s silence is of such a nature as to lead to the inference of assent.” Wharton on Grim. Ev., Sec. 679.
5. One Robinson was examined as a witness by plaintiff in error. On cross:examination the attorney for the State asked him if he had not been indicted in the Circuit Court of Coffee County for larceny and robbery, and he answered he had been. Thereupon the State offered an authenticated copy of the record in the case, complete in every respect, and containing the j udgment declaring him . infamous and disqualifying him from giving evidence in the Courts
6. After the defendant below had closed his case, the State, over the objection of the former’s counsel, was permitted to show by one witness that he assisted in undressing Pemberton when he was shot, and saw no weapon of any kind on or about his person; and by another, that he examined the hands of the deceased immediately after the shooting occurred and found no blood on them. It is now insisted this testimony should have been offered in chief, and that the trial Judge was in error in permitting it to be given in rebuttal. The contention of plaintiff in error was, that his first shot was fired as a result of a demonstration made by the deceased in passing his hand to his hip pocket, as if to draw a. pistol, and his second, when deceased was in the act of throwing a large stone, upon which his hand, made red by the flow of blood from his first wound, had' left its impression. This testimony, of which complaint is now made, was- clearly competent to rebut these contentions. But, in addition, while orderly procedure would suggest that the State should put its whole case in evidence in chief and reserve only its rebuttal testimony to meet the case of the prisoner, yet there is no .fixed or inflexible rule which would require the trial Judge to reject testimony in rebuttal which more properly should have been pre
7. The trial Judge, among other things, said to the jury: “To constitute self-defense, the belief or apprehension of danger must be founded on sufficient circumstances to authorize the opinion that the deadly purpose then exists, and the fear that it will be at that time exercised.” It is insisted there was error in this instruction, as its necessary effect was to exclude the plaintiff in error from the right of self-defense, even though he might have had, at the time he fired, a well-founded apprehension that he was exposed to great bodily harm at the hands of the deceased. It was an evident inadvertence on the part of the trial Judge in dropping, at this place in his charge, a fear of, or apprehension of, great bodily harm as one of the constituents of. the right of self-defense. But immediately following the above he says: “To excuse a homicide, the danger of death or great bodily injury must either be real or honestly believed to be so,” etc. This is repeated distinctly, and with emphasis, in two other places, in close connection with the foregoing, so' that it is very clear this inadvertence could not have misled the jury to the prejudice of the prisoner. The assignment, therefore, is not well taken.
8. It is further assigned for error .that the trial
9. The trial Judge instructed the jury that i£if the proof shows plaintiff in error to have been a man of good character previous to the difficulty, this is a witness in his behalf,” etc., and it is now assigned for error that this limits the effect of good character to the time of the difficulty, while the law gives him the benefit of it as a witness in his behalf until it is impeached on the trial. The prisoner was resting his case upon the plea of self-defense, and had testified that he had only fired his pistol when he believed himself to be in danger of death or great bodily harm. To support this defense, he introduced a great number of witnesses, who testified that he was a man of peace, whose life had been characterized by quiet and subordination to the law. It was to this phase of his character the Court below directed this part of the charge, and it was< proper to limit his good character in that respect to the date of the fatal difficulty. For, while evidence is admissible to show that the previous good character of the accused was such as to make it improbable that the accused would be guilty of the
And that the . jury in this case could not have been misled by the limitation put upon the character of the prisoner in this regard, is apparent in other parts of his charge, where the trial Judge lays down with much clearness the rules that are to govern the jury in testing the credit of the witnesses, and then gives him the full benefit of the supporting evidence he had introduced to support his character as a witness.
10. It is contended, in the last place, that the Court below committed error in declining to grant the motion for a new trial. This motion was rested on two grounds: First, that one of the witnesses for the State testified without being sworn, and that this fact had only become known to the plaintiff in error after the trial; and, second, that since the trial new and important testimony had come to the knowledge of the prisoner and his counsel. As to the first of these grounds, it is to be observed, while there is an affidavit of the prisoner, stating that he only became aware of the fact that this witness gave his testimony without being sworn, after the trial was concluded, yet the record is silent as to when his counsel discovered it. That
To understand the second of the grounds on which this motion rests, it is necessary briefly to state a few of the facts which are undisputed and the contention of the plaintiff in error as to others which are the subject of controversy. The deceased, on the' morning of the difficulty, was driving a wagon loaded with wheat towards Murfreesboro, seated upon the front part of his vehicle. The prisoner was in his buggy, going in the opposite direction. When they met each halted his team and there was at once renewed an old quarrel of an exasperating character. An angry colloquy ensued, during which each party maintained his position in his own conveyance. Finally, according to the testimony of the plaintiff in error, the deceased, denouncing the prisoner, said to him that he (the deceased) intended to kill him, and accompanied this threat with a movement of his
But it is insisted the Court below violated correct practice, and did serious wrong to the prisoner, in requiring Hopkins, the affiant, to be present in Court to submit to an examination at the hands of the State’s representatives, and also in permitting the State to offer counter affidavits to contradict and thus impeach him. It was not only not a violation of, imt altogether sound, practice to require, on this motion, the presence of affiant in open Court in order to test his knowledge and his credibility by an oral examination of him with regard to the statements contained in his affidavit. Glidewell v. State, 15 Lea, 133.
Nor was any error committed in allowing the pro
Nor can the party tendering the witness reasonably complain of this procedure, for he should be prepared to repel any collateral attack on the character of the witness upon whose testimony his motion rests. As there is great temptation to perjury in such applications, the trial Judge should avail himself of the law’s best methods for sifting the consciences and character of such a witness, in order that a conclusion may be reached which will promote rather than defeat the ends of justice.
This last assignment of error is also overruled, and the judgment of the Circuit Court is affirmed.