68 Tenn. 261 | Tenn. | 1878
delivered the opinion of the court.
Poteete was indicted and convicted in the common law and chancery court of Madison county, for killing Jason Fussell, a deputy sheriff, in March, 1877. The jury found him guilty of murder in the second degree, and fixed his punishment in the penitentiary for sixteen years. Motions for a new trial and arrest of judgment were made, and overruled, and appeal in error to this court. Several questions are presented in argument on which reversal of this judgment is asked, which we proceed to notice, so far as may be necessary for the decision of the case before us. A short statement of facts will serve to show the bearing of the questions to be decided.
It seems that the defendant, together with his two brothers, John and Levi Poteete, had been convicted, and fines imposed on them, for the offense of carrying pistols in violation of law. They gave their father, Andrew Poteete, as surety for payment of these fines and the costs of the prosecutions; and on these judgments executions were issued by the clerk, and placed in the hands of Perkins, sheriff, who is assumed to have put them in the hands of Fussell, the deceased, for collection. On the back of these executions, which are in the usual form, is endorsed the fact that they are “ alias ” executions. In addition to the above process, we find on the other side of them, what is entitled a “mitimud,” which commands the sheriff to take the body of the parties and safely keep them in custody n the county jail, until the amount of the judgments in.
On the subject of the authority of the deputy sheriff to make the arrest, his honor below charged the jury substantially, that if Fussell went to the house where the prisoner and the other persons named as defendants in such precepts were, for the purpose of apprehending them, such act on the part of Fussell and those with him was a lawful act, and if he informed them and the others of his purpose, and commanded them to submit to arrest, and they made no question upon the authority or the precepts, but apparently submitted to the arrest, and acted so as to induce Fussell to believe that they did not desire or care that the precepts be exhibited, it was not necessary that he should exhibit them, and the parties under such circumstances would have been under lawful arrest, and it was unlawful in them by any means to resist him; and if, after such submission, the prisoner, for the purpose of escaping, deliberately or premedi-tatedly shot at and killed the said Fussell, he is guilty of murder in the first degree.
It is obvious from this extract, taken as a whole, that his honor assumed the validity of the precepts we have referred to, as giving authority to Fussell to arrest the defendant, and in fact all the parties against
While we perhaps might not go to the full extent of the doctrine here stated, as to objections to the
There are other questions proper to be decided, as the case will go back for another trial, and they will likely be presented again. First, whether Levi Po-teete was a competent witness for defendant, he being jointly indicted with him for the same offense, but having been permitted to sever before the trial, and therefore not on trial with him. On this question, we concede, on the general current of authority, the competency of the witness. We find, however, this principle cited in Philips on Evidence, with a quere, as to its soundness, based on the suggestion that the attorney-gen eral might, by jointly indicting material witnesses, withhold evidence ■ from the defendants. In fact, it is pretty clear that the rule was, probably, originally transferred inadvertently into the criminal law, by analogy with the common law technical rule, that no party to the record should be a witness in the cause. It is thus referred to in a case of our own as a technical rule in 1 Yer., 432; see also, 1 Phil, on Ev., 89, notes. In the case of Delozier v. The State, 1 Head, 46, where a party jointly indicted ■and found guilty, was offered as witness on the trial
In view of these authorities, we agree with the opinion cited, and hold the witness competent; this rule being the only one standing on any sound legal principle, so far as we are able to see, and the one generally recognized as settled, since the above decision in our State.
The next question is, whether it was proper to allow the dying declaration of Jno. Poteete, who was engaged in the difficulty, and was killed by a shot from one of the Andersons, to the effect, that he fired but one shot, thus tending, to fix the killing of Eus-
This court, in the case of Hudson v. The State, 3
In view of these considerations, we are satisfied the rule laid down by the authorities cited is the sounder and safer one, and that the principle on which the admissibility of such testimony should mainly rest, is the one stated, of policy, and to prevent the party from depriving the State of testimony by his own murderous act. We therefore conclude, there was error in the admission of these declarations of John Poteete against the prisoner.
There are several other questions debated before us, but if they involve error, as probably some of them 'do, they are not likely to occur again, being questions of competency of jurors, who are alleged to have