Anthony v. State

• Decision Date: 31 December 1838
• Citation: Anthony v. State, 19 Tenn. 265 (Tenn. 1838)
• Parties: ANTHONY v. THE STATE.
• Court: Tennessee Supreme Court

19 Tenn. 265

ANTHONY

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1838.

On the 18th of December, 1837, the grand jury of Bedford county indicted the defendant for murder committed on the body of Mary, his wife, by feloniously, wilfully, and of his malice aforethought shooting her with a pistol charged with powder and a leaden bullet, on the 16th of December, 1837, thereby giving her a mortal wound whereof she languished until the 17th of December, and then died.

A capias having been issued and the defendant arrested and committed to jail, he was brought to the bar the same day on which he was indicted, and being arraigned pleaded not guilty, and issue was thereupon joined, and by consent the cause was continued till April term, 1838, when he was put upon his trial.

Caroline Anthony, the defendant's daughter, aged eleven years swore that she and a negro woman had left the house a few minutes before the pistol fired to bury some cabbage; that when she returned her father was standing in the door, and the baby was near him on the floor; that her father directed her to take out the child, which she did, and took it to the kitchen; that in about half a minute after she got to the kitchen she heard a pistol fire and her mother exclaim. She immediately ran back, and her father was standing at the door with his pistol in his hand, and said to her, “I have killed your mother, don't cry;” that she went into the house, and her father came in and said, “Polly, have I hurt you? where did I hit you?” and then went away, and came back after awhile with Mrs. Hiles and others. When the witness first went into the house her mother was lying on the floor near the fire, and she got up, after her father went away, and crawled into the bed by herself. When the witness left the house to bury the cabbage, her mother was engaged in putting bats in a quilt. Her father and mother were then in a good humor, and had been so all that day. When she took the child from the door, her father had no pistols in his hands that she then saw. The pistols were usually kept in a chest in the same room of the house.

Mrs. Hiles, who, with her husband, lived about 250 yards from defendant's, had dined at his house on the day of the killing, and had remained there till about an hour before it. The defendant and deceased were as friendly and affectionate as could be. The defendant, immediately after the killing, came to her house with two pistols in his hands, and threw them at her feet. She and several others accompanied him back to his house. He was the first to suggest sending for a physician, and urged the messenger to go with speed; and though advised to make his escape, he remained at home during the whole night, and was under no restraint.

Dr. Barksdale, the physician, stated that about ten or eleven o'clock on the night of the day on which the deceased was shot, he inquired of her, “Whether she was shot accidentally or by design?” The defendant's counsel objected to his detailing the dying declarations, the witness stating that previous to his inquiry, he had made no communication to her, nor heard any made by any other person, informing her of her approaching dissolution; nor heard her say any thing concerning her consciousness of her approaching dissolution, only that she was suffering great pain, burning heat, and great sickness of the stomach; that the wound was a large pistol shot, and that such a wound, ninety-nine times in a hundred, produces death. He thought she was fast sinking at the time of his inquiry, but she did not die until the next day about ten or eleven o'clock.

The defendant's counsel, upon this statement objected to the witness's speaking of the dying declaration; but the Court overruled the objection, to which opinion the counsel excepted. The witness then stated, that in reply to his question, the deceased said, “It was done with design, and what she had long expected, but the defendant was not right.”

Dr. Barksdale further stated that he had known the defendant for many years, and saw no evidences whatever of derangement or insanity on that night, or at any other time. He got to the defendant's house in this county about dark, or a little after, a few hours after the shooting. The defendant paid no attention to his wife that night, but lay down by the fire. He stated that his attention was directed to the defendant during the night, to see what was the condition of his mind, and was satisfied that he was not insane.

Thomas J. Loyd was at the defendant's all the night after the killing, did not see the defendant wait on his wife until Dr. Barksdale had gone to bed, which was late at night. He lay with defendant at the fire.

Samuel Sloan saw the defendant going along the road in April, 1837, when some young mules having got around his colt, and hemmed it up, the defendant said, “It is a plot made up, and I must have blood, and now is as good a time as any.”

Something more than twelve months before the trial, the defendant sent for witness, and when he went he found the defendant sitting some distance from the house on a log. He talked strangely, saying that he had made peace with God and God with his soul; that he could not sleep at night and wanted laudanum; that witness got him some; that, on one occasion the deceased showed witness a vial of laudanum, and said she was afraid the defendant would do himself some injury, he had taken a small portion of one of the vials of the laudanum, which witness got him.

Dr. A. M. Hoyt had known defendant for several years; saw him once two or three years ago, when he was laboring under a slight attack of mania a potu; had all the symptoms of that disease as contained in the books; had seen him twice since, when he considered him partially insane from the same cause. The last time was during the summer of 1837.

Benjamin Rives lived in a mile of defendant; was well acquainted with him, and never saw him at any time when he thought him deranged. At times, when he was drinking, his habits were like other drinking men's. He drank by sprees, was always a shrewd, active, money-making man. See Ray's Med. Juris. section 319.)

There was other testimony concurring in stating him to be sane and shrewd, and some stating vaguely that he sometimes behaved strangely.

There was also testimony showing that he and his wife had, in the spring of 1837, separated, and she had gone to her father's, where she had stayed till defendant persuaded her to return, and that they had had frequent jars.

Dillahunty, J., holding the Court instead of Anderson, J., charged the jury. The part of the charge excepted to by the defendant's counsel was,--

“That to constitute murder in the first degree, it would not be sufficient that the killing was wilful and malicious (5 Yerg. 340). It must also have been deliberate and premeditated; that, in the absence of passion or provocation, the length of time during which the prisoner deliberated and premeditated was immaterial; that if there was neither passion nor provocation, and the design to kill was formed, it would then make no difference whether that design had been deliberated on but one moment, one day or one week; (2) but if the design to kill was formed, under the influence of passion, or upon provocation, and the killing ensued before the passion had time to subside, it would only be murder in the second degree; or manslaughter if the provocation was a sufficient and legal one, as above explained to the jury.”

The jury returned a verdict in the following words: “We find him, the defendant, Alfred Anthony, guilty of murder in the first degree, in manner and form as charged in the indictment; but we are of opinion there are mitigating circumstances in his case.”

The defendant was called upon by the Court to know if he had any thing to say why judgment should not be pronounced against him, when his counsel moved that the cause be adjourned till the next day, which was done. On the next day, April 10, 1838, his counsel moved for a new trial, which was denied, and the defendant being again asked whether he had any thing further to say why judgment of the law should not be pronounced against him, said he had not, whereupon the Court adjudged, “That the defendant should be confined in the jail and penitentiary house for and during his natural life; that he should pay the costs in this case; and that the sheriff of Bedford county be charged with the execution of this sentence forthwith.”

And thereupon the defendant's counsel moved the Court for an appeal in the nature of a writ of error to the Supreme Court, which was granted; and a bill of exceptions, containing the above facts, among others, was presented and signed and sealed, and made a part of the record.

Long, with whom was James Campbell, for the plaintiff in error, said a reversal of the judgment in this case is asked for on three distinct grounds:

1. The charge of the circuit judge, “That, in the absence of passion or provocation, the length of time which the prisoner deliberated and premeditated was immaterial,” and that if the “design (to kill) was deliberated on but one moment” it was the same as if deliberated on “one day or one week,” is erroneous, and particularly calculated to mislead a jury. The Act of 1829 requires that deliberation shall be proved before a killing, however wilful and malicious, shall be deemed murder in the first degree, and punished capitally. This, the charge does not in terms deny, but erroneously undertakes to instruct the jury what time is necessary for deliberation to transpire in the mind. The word “deliberation,” as used in our statute, means just what it does in all other well written productions, and, as defined in the dictionary, “the act of balancing in the mind, weighing, considering, hesitating,” &c. It is not a technical word or word of art, and always conveys an idea the very reverse of sudden or instantaneous. Deliberation is a mental...