| Tenn. | Dec 15, 1880
delivered the opinion of the court.
The defendant was convicted of stealing a horse in-DeKalb county, at the November term, 1880, of the circuit court for that county. He has appealed in error to this court.
The errors complained of here are, that the circuit judge refused to continue his case upon certain affidavits for that purpose filed by himself; that he was refused a new trial upon the merits of the case and the affidavits of some other • persons filed after the trial, and the admission by the judge of an alleged confession of the defendant. Upon the trial, and as it took place, the guilt of the defendant was clearly made out without any necessity for a confession from him. The confession charged to have been improperly admitted by the judge, was produced in this way: At the instance of the prosecutor, J. F. Mason, one Chas. "Wilkinson went to the defendant when in prison to talk to him; the object of this talk, as stated by the witness, was that they (he and Mason) might find out whether there were others concerned in the stealing, as they believed that there were. The witness Wilkinson, when on the stand, stated: “ I wanted to find out if there were any others in it, so we could use him as a witness. I told him not to tell on himself, but if there were others in with him, to tell it, we could then use him as a State witness against them. If there were others in with him, to make a clean swoop o£ it. This was all I said. He then said he stole the horse and no one else had anything
Admitting the law to be as contended for by the defendant, that a confession made under persuasion or threats, however light or weak, should exclude it from the jury, where is there in this testimony any appearance even of persuasion or threat? The defendant is only asked to confess other people’s sins, not his own, and is expressly told not to confess against himself. But he confesses his own guilt of his own motion, and says that nobody else was guilty. Certainly to let this go to the jury was not erroneous.
As to the affidavits filed for a continuance before the trial, the cause might, so far as appears upon the record, have been contimrod by the judge. They were affidavits, however, in regard to proof which would tend to show an alibi, a good defense if clearly made out, and the judge was taking some risk in refusing a continuance. But, in the nature of things, much must be left to the discretion of a circuit judge, who is presumed to have, and who has in fact so large an experience upon the subject of criminal trials, who knows the shifts, and devices, and false pretenses to which defendants resort in the hope of escape from justice, and that, to disturb the exercise of his discretion, there should be something developed in the after trial to show that the defendant might have been prejudiced in some way by the- refusal to grant a continuance. In this case nothing of the kind was developed. There was a free confession of guilt by the defendant clearly proved. He was found in possession
The judgment of the circuit court will be affirmed and the prisoner sent to the penitentiary. The 'costs will be paid according to law in such cases.