Taylor v. State

79 Tenn. 708

• Court: Tennessee Supreme Court
• Decided: September 15, 1883
• Status: Published

Opinions

Cooper, J.,

delivered the- opinion of the court.

The prisoner, Andrew Taylor, indicted lor the' murder, on September 14, 1882, of John J. Conway, and found guilty of the crime oí murder' in the first degree, has appealed in error.

On September 14, 1882, the sheriff of Hamilton county and John J. Conway, his deputy, were in the smoking car of the railroad train in charge of three prisoners’ bringing them from Chattanooga to Knoxville for a hearing of their canses by this court upon appeal. One of the prisoners was John Taylor, a brother of the defendant, Andrew Taylor, who had been convicted of the crime of voluntary manslaughter, and sentenced to ten years confinement in the penitentiary. Andrew Taylor, and another brother, Robert Taylor, had been waiting a week or two at different points on the railroad, and watching the trains in the expectation that their brother John would be conveyed by rail to this place. They had manifestly conspired together to attempt to release their brother. On the day mentioned, they got on the train at a way station, entered the car in which the sheriff -and his deputy were sitting with the prisoners, and took a distant seat. When the train stopped at the next station, Robert Taylor strode up the aisle of the car, with, according to the principal witness, a “steely appearance in his eyes,” followed by the defendant Andrew Taylor. Conway was sitting next to, and looking out of the window of the car. One of the prisoners was occupying the same seat, while the other two prisoners were on the seat in front of them hand-cuffed together, John Taylor being nearest to the aisle. When within one step of Conway’s seat, Robert Taylor drew a revolver from his pocket, and presented it at his head, saying with an bath, “ cross your hands.” Before the startled officer could do anything except turn his face towards him, dropping at the same time his left hand from the back of the seat on which it rested, Robert Taylor fired his pistol and killed him, the ball passing through, the head of Conway. The sheriff, who was sitting on the other side of the aisle two or three seats further on, rose to his feet and presented his pistol at Robert Taylor, saying, “hold on there.” At that moment the defendant, Andrew Taylor, fired his pistol at the sheriff, the ball striking him. The sheriff also fired at Robert, but the pistol was struck up by John Taylor, and Robert Taylor then shot the sheriff over John’s shoulder. As the sheriff retreated towards the door of the car, Robert and Andrew both again fired at him, Andrew Taylor also continued to snap his pistol two or three times at the sheriff, and when the latter had fallen to the ground, and, as the witnesses say, was pointing his pistol aimlessly around “like a dying man,” the defendant gave him a final shot from the steps of the car, which “ straightened him out.” John was then released, and armed, and the brothers compelled the conductor and enginer to run the train to another station, and made their escape.

The prisoner was indicted for the murder of Conway at the December term of the circuit court, 1882, of Loudon county, in which county the offense was committed. He was afterwards caught in the State of Kansas, and brought back to Loudon on Friday, April 27, 1883. The circuit court was then in session, and the prisoner was at once brought before it, and being without counsel, the court appointed counsel to defend him. The defendant, by his counsel, then demanded a copy of the indictment, which was ordered by the court to be delivered to him. On the succeeding Monday, the cause having been regularly reached on the docket, the defendant appeared in person and by attorney, and moved the court for a continuance until the next term, the defendant supporting the motion by his own affidavit. The motion was overruled. The court then proceeded to empanel a jury, and try the prisoner. After he was found guilty of murder in the first degree, the court overruled a motion for a new trial, and passed sentence in accordance with the verdict.

The testimony set out in the bill of exceptions is clearly sufficient to sustain the verdict, and the fact has not been seriously controverted by the able counsel of the prisoner. They rely for reversal upon certain alleged errors in the proceedings, and especially upon the 'refusal of the trial judge to grant the continuance asked for, or to give time to obtain certain evidence with a view to a possible mitigation of the sentence.

The first point made by the defense is that the record does not show that a copy of the indictment asked for by the prisoner was ever delivered to him, and that the trial was commenced before the expiration of two judicial days from such delivery.

By the Constitution of the State, the accused, in all criminal prosecutions, has the right to demand the-nature and cause of the accusation, and to have a copy thereof: Const., Art., 1, sec. 9. And by statute: “ Every person indicted for a capital offense, if he is in actual confinement, is entitled to a copy of the indictment at least two entire days before trial”: Code, sec. 5204.' The constitutional right extends to all criminal offenses: Moses v. State, 9 Baxt., 229. And the statutory right is imperative upon the courts,, unless waived by the prisoner: Nokes v. State, 6 Cold., 297. But to entitle the prisoner to the benefit of a failure to furnish him with a copy of the indictment,, the record must show that the copy was not furnished, otherwise this court will presume that it was furnished, or that the requirement was waived by the defendant: Davis v. State, 6 Baxt., 429. The record in this case shows that a copy of the indictment was ordered to-be delivered to the prisoner, and it fails to show that the copy was not furnished. The indictment was in the ordinary form for the particular crime, and no-objection was at the trial made to it in any way. When the cause was regularly called three days after the date of the order, the defendant made no objection that the copy had not been furnished, or that he had not received it two entire days before the trial. He might waive both the constitutional and statutory rights, and the presumption would be that he had waived them in the absence of record evidence to the contrary. He may equally waive the rights in part, and the presumption would be that they had been thus waived, unless the record' show otherwise. If, therefore, the Sunday which intervened between the order for a copy of the indictment and the trial was a dies non juridieus, so that it should not be counted at common law or under the statute, the defendant might waive the objection, and such waiver must be presumed in the absence of any thing in the record to show the contrary. The defendant cannot be permitted to go to trial on the merits without insisting upon his rights, and then avoid the result by making the objoctioir for the first time, the additional day being manifestly of no importance for the study of the indictment.

A more serious objection arises upon the motion of the defendant for a continuance of the cause. His affidavit in support of the motion is, in substance, that he is informed by his counsel that a certain person named, who is now in Oregon, can testify to facts material to his defense; and that another person named, who lives thirty-five miles from the place of trial, also knows facts material to his defense, and has not been summoned for the reason that so short a time has •elapsed since his arrest. So much of the affidavit as relates to the last person may be at once dismissed from consideration, for he might readily have been summoned in two days, and we hear nothing more of him, although the court was occupied for several days in making up a jury, and several additional days in trying the cause. And,' moreover, the testimony of the person was not relied upon on the motion for a new trial.

It was held at an early day in this State, that a defendant *in a capital case should not be required to disclose, upon the first application for a continuance, what his witnesses would swear: State v. Morris, 1 Tenn., 220, The only reason, as this court has subsequently said, upon which such a rule can be founded is that at the first term the accused may not have had sufficient time to ascertain what and by whom he would be able to prove particular facts, and for that reason he should be entitled to one continuance on an affidavit otherwise sufficient, without stating what his witness would prove: Nelson v. State, 2 Swan, 482. Whether the affidavit is “otherwise sufficient” is left largely to the discretion of the trial court: Garber v. State, 4 Cold., 161; Cornwell v. State, M. & Y., 147; Sevier v. State, Thomp. Cas., 192. And although the affidavit does show sufficient grounds for a continuance, if upon the trial of the cause it satisfactorily appears that these grounds are false, and fabricated for the purpose of obtaining delay, this court will not reverse because the continuance was not granted: Porter v. State, 3 Lea, 496.

The affidavit of the defendant may be conceded as sufficient in so far as it undertakes' to excuse the failure to have the witness present at the trial owing to his absence from the State, and the short interval of time since the prisoner’s arrest. It says that the defendant expects to prove by the witness “ that he is not responsible for the crime in said indictment charged, and knows of no other witness by whom he can prove the same fact.” If the affidavit is construed to mean that the witness would prove that the defendant did not actually shoot Conway, then the fact is clearly established by the record, and the testimony was immaterial. And if the meaning be that the Avitness would prove facts to show that the defendant was not responsible for the crime at all, then the record clearly ¡shows that the statement was false, and fabricated for delay.

The record leaves no doubt, and the fact is frankly and necessarily conceded by the counsel of the defendant in argument, that the defendant is guilty of murder. He was present aiding and abetting his brother in killing the deceased, and the proof establishes, beyond a reasonable doubt, that the killing was in pursuit of a common design, willful, deliberate, malicious and premeditated: Code, secs. 45915, 4588. All that the counsel contend for is that the testimony of' the alleged witness might have induced the jury to find mitigating circumstances, in which event the court might have commuted the punishment to imprisonment for life. They insist, and, it may be conceded, correctly, that a. defendant is entitled as much to evidence which will lessen the punishment as to evidence which will lower the grade of .the crime. And they claim that the "expected testimony of the absent witness might have had that effect.

This testimony is set out in - the affidavit of the defendant’s attorney presented upon the motion for a new trial. The affidavit states that he was informed that the absent witness sat on the seat of the railroad car behind the defendant and Robert Taylor on the day of the killing, and heard defendant remonstrating with his brother, protesting against something, the nature of which the witness did not at that time understand, and refusing to do, or take part in something which, though he did not understand, he is satisfied was the rescue of John Taylor, resulting in the killing for which defendant has been tried; and, at the same time, saw Robert Taylor in a violent manner clutch his fist, and shake it in defendant’s face, and, with oaths, make him hush,, and tell him he had to do it; that he must hush— he had heard as much of that sort of thing as he .was going to, and would hear no more, and perhaps accused him of cowardice.

The theory upon which this testimony is considéred to be important is that the defendant was influenced to join in what was done by his brother Robert, and that the fact might palliate his guilt in the eyes of the jury. The proof shows that Robert was about twenty-five years of age at the time of the offense, and the defendant had about reached his majority. Robert was, however, a hardened criminal, having served a term in the penitentiary, and the argument is legitimate that he was the prime mover in the act in' question.

It is to be noted that the affiant does not say that he had heard the statements proposed to be proved from the witness himself. On the contrary, the affiant expressly says that “ he was informed ” of the facts. It is also to be noted that the affiant does not say that he believes the statements, and that the defendant does not offer his own affidavit to the effect that such a conversation did actually take place. The. proposed testimony is the hearsay of hearsay, uncorroborated, as it clearly should have been, by the affidavit of the person or persons who received it at first hand from the absent witness, and communicated it to the de-defendant’s attorney, and by the defendant’s own affidavit. The trial judge can scarcely be put in error by a refusal to grant a continuance or a new trial upon such an unsupported affidavit.

But if the witness had been present at the time, would the testimony have been admissible? He would be called on to testify to a conversation between the defendant and his brother in relation to the act they were about to commit, if we adopt the conclusion or inference of the witness to that effect. The conversation was no'part of the res gestae. Declarations to be admissible as part of the res gestae, must be contemporaneous with the act, and tend to characterize it. Declarations explanatory of a previous fact are inadmissible: 1 Greenl. Ev., sec. 108, and noteá; Nelson v. State, 2 Swan, 237; Garber v. State, 4 Cold., 161. Conversations between conspirators before the guilty act, not tending to characterize the act, but only bearing on the relations betAveen the parties, could not be introduced by either, nor proved by a third person, at their instance, who might have casually overheard them. They cannot be permitted in this way to make evidence for themselves.

On May 2, 1883, one W. W. Williams, after qualifying himself in the usual way, rvas selected as a juror, and remained Avith the other jurors as selected until the panel Avas completed on May 4. After the panel Avas made up, but before the jurors Avere sworn, the attorney-general, in the absence of the jury, moved to discharge Williams upon the ground that he had formed and expressed an opinion as to the guilt of the defendant. He introduced, in support of his motion, the affidavits of two witnessess that théy had heard Williams express the opinion that the defendant ought to be hung, and the affidavit of a third person that he had detailed all the circumstances of the killing to Williams some time after the event occurred, and that Williams remarked that if the defendant was-caught he ought to be hung without law, or gospel, or judge, or jury. The defendant objected to the sufficiency of the affidavits, whereupon the court asked him if he objected to the discharge of the juror. The defendant replied that he did not object to the discharge of all the jurors. Williams himself, when interrogated by the court on the subject of the affidavits, said that the affiants were respectable and truthful men, and he would not say positively that he had not expressed himself to them as stated, although he had no recollection of having done so. The court then discharged Williams, and supplied his place with another juror.

The facts as shown by the affidavits upon which Williams was discharged would have been sufficient to have sustained a motion for a new trial by the defendant under the decisions of this court, and there was consequently no error in discharging him in advance: Draper v. State, 4 Baxt., 253; Hines v. State, 8 Hum., 599. No serious argument has been submitted against the propriety of the discharge, but the point is made that the court should have at the same time discharged all the jurors, because of the fact that the incompetent juror had associated with the residue of the panel for two days. No doubt the court might have discharged the entire jury, if, in the exercise of his discretion, he had thought the ends of justice re quired such action: Griffee v. State, 1 Lea, 41. But the question is, whether the trial court was compelled by law to discharge the jury, without more, merely because one of the jury had previously formed and expressed an opinion adverse to the- defendant? The defendant did not object to the other jurors because of their association with the incompetent juror, nor ask for their discharge, nor offer to show that anything' improper had passed between them and the discharged juror. Upon principle, in the absence of any thing else, the mere association of selected jurors with one of their number who had formed and expressed an opinion as to the guilt of the defendant, would no more render them incompetent than such association previous tq the trial. And no decision has been cited holding otherwise.

It has been held by this court that the separation of a juror from his fellows, unless satisfactorily explained by the prosecution, is a sufficient ground for a new trial: Hines v. State, 8 Hum., 597. The burden of proof is upon the State to explain the separation, not upon the defendant to show actual injury, and the analogy of that class of cases to the case before us has been strongly pressed upon the court. But there is no analogy between the two cases.

A juror who separates from his fellows -is guilty of a positive violation of his duty, and thereby ■creates a prima faeie case against him, which requires to be met by countervailing testimony. But jurors who simply remain, with the delinquent juror are merely performing their duty, and aré not thereby put in fault. The burden was, therefore, upon the defendant to show improper communications by their'associate, or to establish some fact to create a suspicion against them. Until a prima facie case of taint is made out, there is no necessity of explanatory evidence.

A real analogy would exist if the. separated jurymen were allowed to remain on the jury by the defendant in the full knowledge of the fact of separation, or still better, if the defendant, , after the delinquent juror was discharged, failed to except to the other jurors who had associated with him subsequent to the separation, upon the ground of such association. But these points may be said to have passed into judgment. It is well settled that if a juror, incompetent for the reason that he- had expressed an opinion, has been selected upon the jury, and the record fails to show that the defendant had exhausted his challenges, the objection is waived even in a capital case: Presswood v. State, 3 Heis., 468; Holcomb v. State, 8 Lea, 420. The record in this case does not show that the defendant had exhausted his challenges. In Griffee v. The State, 1 Lea, 41, after six jurors had been selected and placed in charge of an officer, two' of them separated from their fellows, but were brought back, and remained with the others until the court met next morning. The trial judge discharged all the jurors,, but made an order that the four jurors who had merely associated with the delinquents should be upon the panel for a new jury. The defendant made no objection to the panel, nor did lie-object to three of the four jurors when passed to him by the State. The court, however, of its own motion, discharged these three jurors, and a jury was selected before the defendant’s challenges were exhausted. The court said by Judge Freeman: “ There is no reversible error in this question in any aspect of it.” In Cantrell v. State, 1 Leg. Rep., 193, it was shown, upon a motion for a new trial, by the affidavit of one of the defendant’s attorneys, that one Fultz, a juror, when asked in his voire dire whether he had formed an opinion, said that be had, and believed -defendant guilty, but that the reply did not reach the ear of his counsel until after he had taken his seat. His attention was then called to it by another member of the bar, and no objection was made, Judge Freeman, in delivering the opinion of the court, said: “This cannot aid defendant. He should have objected at once, and presented the facts to the court, when the juryman would have been set aside. He cannot remain quiet under such circumstances, and 'by his conduct accept the juror after the objection comes to his knowledge, especially when the fact is known before the jury is made up or trial commenced, and then have a new trial when the verdict is found against him.” Both of these were convictions of murder, one in the first and the other in the second degree. The case before us clearly falls within the' principles settled by them.

The bill of exceptions shoves thát at the close of the testimony in the cause, the defense stated that N. J. Bell, who had been examined on the part of the State a few days before, would give important evidence on behalf of the defense, and asked the court to give them time to get the witness to the place. The application did not show that the witness had been subpoenaed, where he was, or when he could be procured, nor what the witness could prove. Of course there was no error in the ruling of the court upon such a showing. In the affidavit of the defendant’s attorney used upon the motion for a new trial, it is stated that the attorney had himself permitted the witness to leave the place of trial and go to Knoxville upon his promise to return the next morning, under the expectation that the trial would not close as soon as it did. Bell was the conductor of the train on which the killing occurred, and proved, when examined by the State, that he had stepped off of the cars before the shooting occurred, and that after the sheriff had fallen, he ordered- the local agent of the railroad company at the station to go for a physician. After this, he says, he looked around, and saw pistols pointed at him by men standing; on the platform of the smoking car, who directed him to start the train. He told the engineer, who was also on the ground,' to move away as quick as he could. The witness then stepped on the front, platform of the smoking car, and went in behind the men who had pointed their pistols at him. "When he got inside, the larger of the men presented his pistol at him, and asked him if he was armed. He replied that he was not, and John Taylor told the other not to hurt the witness as he was his friend. The witness then details what he saw and heard thereafter. During the subsequent conversation, but exactly at what time is not stated, the affidavit .for a new trial undertakes to say that the witness would depose that while the brothers had their pistols in their hands, Robert Taylor, in the presence of the defendant, said that they regretted having killed the sheriff and Conway, that they did not intend so doing, but the sheriff and Conway .forced them to do it.

If this alleged testimony was at all material, the affidavit shows that the defendant failed to have it before the jury by his own fault. But it is clearly both immaterial and incompetent. The expression of regret for a murder amounts to nothing, and Robert Taylor’s statement that he was forced to commit the deed by the deceased is falsified by the testimony of all the witnesses. The affidavit undertakes to say that the conversation was a part of the res gestee. But this is a mere conclusion of the draftsman, and a clear mistake. The deed had been done, and the guilty patties could not by what they might afterwards say make evidence for themselves.

The indictment in this case is in the usual common-law form. One of the defendant’s counsel insists that the indictment is insufficient to sustain a conviction of murder in the first degree. It is well known that one of our most distinguished writers on criminal law has always maintained the view contended for, and one of the judges of this court has reached the same conclusion: Poole v. State, 2 Baxt., 288. But the weight of judicial authority is that as the common-law form of indictment included all grades of murder, the statute dividing murder into degrees only affects the evidence and the punishment, not the forms of pleading: 2 Bish. Crim. Prac., sec. 569, et seq., where the authorities are given, while the learned author dissents from them. In this State, in the very act in which the crime was divided into grades, the Legislature expressly provided that the indictment should be sufficient if the offense was charged or described according to the common law, and this provision of the statute was. brought forward into the Code, sec. 5119. This court, in the first case which came before it under the statute, where the point was distinctly made and argued with marked ability, held that the indictment in the common-law form was sufficient: Mitchell v. State, 5 Yer., 340. And the decision has been repeated from time to time, and uniformly adhered to. We see no sufficient reason for departing from the ruling.

It is contended that his Honor, the trial judge, failed to tell the jury what a conspiracy was, and erred in charging upon lying-in-wait as an element in murder in the first degree. But the defendant was not indicted for a conspiracy, and was indicted for murder in which lying-in-wait may be an element. If there were no lying-in-wait, the charge would do no harm. The second special request only asks what the judge had already charged, that the jury must find that the Taylors “were guilty of lying-in-wait to carry out their common purpose to kill any one who should oppose them.” So of the remaining request that if the jury had doubts as to whether the defendant was guilty of one of any two degrees of homicide, they should find him guilty of the less grade. For his Honor had already charged that the jury' could not find the defendant guilty of any grade ot homicide unless satisfied that he was guilty of that grade beyond a reasonable doubt. Much of the argument submitted to us in behalf of the prisoner was based upon the idea of great popular excitement against the prisoner. But there was no application for a continuance on that ground, nor is there any thing in the record indicating such a state of affairs, of tending in the least to show that the trial was otherwise than fair and impartial.

There is no error in the record, and the judgment must be affirmed.