121 Tenn. 83 | Tenn. | 1908
delivered the opinion of the Court.
Plaintiff in error was convicted of a felonious assault with intent to commit voluntary manslaughter upon the person of one Payette Stewart. While the plaintiff in error did not testify, yet the theory of his defense was that Stewart was the aggressor, and in using the knife, which the plaintiff in error did, he was acting under a reasonable apprehension of death, or great bodily harm, by reason of the fact that he was then being assaulted with a knife in the hands of Stewart. No evidence was introduced tending to support this theory, save as found in the testimony of witnesses of the plaintiff in error to the effect that the day after the difficulty they heard Stewart say that he did not know whether he cut Thomas, but he struck at him two or three times.
This testimony went to the jury over the objection of the State.
Stewart being dead at the time of the trial, in rebuttal the State was permitted to show by witnesses that Stewart had stated to them, or in their presence, at a time subsequent to the date of the statement attributed to him by the witnesses of the plaintiff in error, that he had no knife at the time he was stabbed by Thomas,
It is not seriously claimed by the counsel for the plaintiff in error that the statement attributed to Stewart as having been made after the difficulty, constituting no part of the res gestae and offered in evidence by the plaintiff in error, was competent as.against the State; nor could a contention that such testimony was competent be maintained. The question, then, is, having opened the door for such incompetent evidence, will the plaintiff in error be heard in this court to urge a reversal upon the ground that other incompetent evidence directed to the same point was introduced by the ■ State in rebuttal?
It would seem, as a matter of sound reason, that a party who hás, over the objection of his adversary, given to the jury clearly incompetent testimony, should not be allowed to avail himself, as a ground for a new trial, and a fortiori for reversal in an appellate court, of the fact that his adversary had used in rebuttal neutralizing testimony equally incompetent, but directed to the same point. In such a case certainly the party who is unsuccessful, notwithstanding the error of which he was first guilty, should not be allowed to obtain relief, especially in a court of review, because the other party had followed a bad precedent which he him
We hold,', therefore, that the trial judge committed no error in the matter now complained of; and, the verdict of the jury being amply warranted by the weight of the testimony, the judgment of the court below is affirmed.