72 Tenn. 428 | Tenn. | 1880
delivered the opinion of the Court.
The plaintiff in error was indicted for poisoning her husband, convicted of murder in the first degree, and sentenced to death. .She appealed in error.
The case is one of circumstantial evidence, and, there being evidence tending to show that the prisoner bought strychnia on the previous day to that of her husband’s death, and that the husband exhibited some of the symptoms usually aceom-
The State had proved by the mother of the deceased that he was sound and healthy, and that she never knew of his having spasms.
Under these circumstances, the defendant offered to introduce a witness and prove by him that the deceased was an unsound man, his general- health bad, and that he had had several attacks of severe sickness, accompanied with spasms; that he considered himselt poisoned in 1870, and had never recovered from the effects thereof; and that his mother knew of this.
The Statels Attorney objected that the witness had not been put under the rule.
Defendant’s counsel stated that he and his client were not aware they could prove these facts by the witness until just before he was put on the stand, and for this reason the witness had not been subpoenaed, put under the rule, or- kept out of the court-house
If, as the record fairly implies, his Honor was of opinion that the witness should be excluded merely because the State and the defendant had. asked for the rule that the witnesses should be examined out of the hearing of each other, he was clearly in error. The rule is to be favored as a mode of eliciting the truth, and is demandable as of right in all cases, upon affidavit of facts showing its necessity; Rainwater v. Elmore, 1 Heis., 363; Nelson v. State, 2 Swan, 237. 4 But all the authorities agree that the right of excluding the witness for disobedience to the order is in the discretion of the Court, a discretion rarely exercised: 1 Gireenl. Ev., sec. 432, and cases cited. And it has been ruled that if the witness remain in Court, in disobedience of the order of separation, his testimony, on that ground alone, cannot be excluded, but is matter for observation on his evidence: Chandler v. Horne, 2 M. & Rob., 423.
If his Honor meant to exercise his discretion in excluding the evidence, although this Court would be slow to revise discretionary action of the trial Judge, yet the discretion was, under the circumstances of this case, improperly exercised.
The case was one of circumstantial evidence,
The judgment will be reversed, and the cause remanded for a new trial. ,