Colquit v. State

• Decision Date: 19 June 1901
• Parties: COLQUIT v. STATE.
• Court: Tennessee Supreme Court

64 S.W. 713

COLQUIT v. STATE.

Supreme Court of Tennessee.

June 19, 1901.

Error to criminal court, Shelby county; L. P. Cooper, Judge.

Jack Colquit was convicted of murder, and he brings error. Reversed.

Hancock & Poston and John T. Moss, for plaintiff in error. The Attorney General, for the State.

McALISTER, J.

Colquit was convicted of murder in the second degree for killing one Fred Hunt, colored, and sentenced to the penitentiary for 20 years. He has appealed in error.

The first assignment is that the court erred in permitting the state to introduce in evidence the verdict of the coroner's jury on the inquisition of this homicide. The verdict was that Colquit killed Hunt, and "said killing was, in our opinion, a cold-blooded murder." Counsel for the prisoner excepted at the time to the evidence, but the court overruled the objection, and permitted the verdict of the coroner's jury to be read. On the following morning, however, the court, of its own motion, withdrew this evidence, and instructed the jury to give it no consideration. The question of the admissibility of such evidence has never been decided by this court, so far as we are informed, and yet it frequently arises in the lower courts. We have found, in our examination of the question, precedents for its introduction in civil cases, but no criminal case in which it was admitted. The case of Insurance Co. v. Kielgast (Ill. Sup.) 22 N. E. 467, 6 L. R. A. 65, was an action on a policy of life insurance. The defendant company relied on a clause of the policy which provided that if, within three years from the date of the policy, the insured should die by any act of self-destruction whatever, the policy should become null and void. It was shown that the insured died by an act of self-destruction, to wit, by shooting himself with a pistol. On the trial the defendant company offered in evidence a certified copy of the coroner's inquest, which showed on its face that the insured came to his death by a pistol shot fired by the hand of deceased while laboring under a fit of temporary insanity. The court below excluded this evidence. The supreme court of Illinois held on appeal, viz.: "We are satisfied, both upon principle and authority, that the coroner's inquisition was admissible. The inquisition was made by a public officer acting under the sanction of an official oath in discharge of a public duty enjoined upon him by the law, and when it is returned into court and filed we see no reason why it should not be competent evidence tending to prove any matter properly before the coroner which appears upon the face of the inquisition. We do not hold that such evidence is conclusive, but only that it is competent evidence to be considered." The court cited 1 Greenl. Ev. § 556; 2 Phil. Ev. (5th Am. Ed.) 262; 2 Tayl. Ev. (6th Ed.) § 14,871; Starkie, Ev. 1309. In the latter authority it is stated that in Sergeson v. Sealey, 2 Atk. 412, Lord Hardwick said that inquisitions of lunacy and inquisitions post-mortem were always admissible, though not conclusive. In the case of Burridge v. Earl of Sussex, 2 Ld. Raym. 1292, an inquisition post-mortem setting out the tenor of a deed was held to be evidence of the deed. But no case has been cited, nor have we been able, in our examinations of this question, to find a case, where such evidence was held admissible in a criminal case. It was held in State v. Cecil Co Com'rs, 54 Md. 426, — presumably a criminal case, — that the inquisition of a coroner's jury is inadmissible to prove that county commissioners were negligent in not providing a "safe and suitable crossing over a creek while they were repairing a bridge over same." It was said by this court in Galloway v. Shelby Co., 7 Lea, 121: "The coroner's inquest is no part of a criminal prosecution, although it may uncover facts which may lead to one, but it is, as its terms import, an inquiry to ascertain the causes and circumstances attending the death," etc. It is not a part of the prosecution, and we do not see upon what ground it is admissible. Such an inquisition is generally conducted in the absence of the accused, with no opportunity to offer testimony or cross-examine witnesses, and is a proceeding wholly ex parte. The verdict of the coroner's jury in this case that "this was a cold-blooded murder" was the expression of an opinion touching the very issue submitted to the determination of the jury, and such evidence was manifestly incompetent. But, as facetiously remarked by an eminent member of the bar, the prisoner has no vested rights in the mistakes of the trial judge, and if the illegal evidence is withdrawn, and the jury admonished to give it no consideration, the trial court has done all that is practicable to correct the error. In this case the trial judge, after having become satisfied that the evidence was incompetent and illegal, withdrew it from the jury, and instructed them not to consider it. He repeated that admonition in his charge, and the jury thoroughly understood that the coroner's inquest was not before them. It has been repeatedly held by this court that, if incompetent proof go to the jury, and the court afterwards definitely withdw it with proper instructions it is no cause for reversal. Railroad Co. v. Humphreys, 12 Lea, 200; Green v. State, 97 Tenn. 59-62, 36 S. W. 700.

The second assignment is that the court erred in refusing to admit the declarations of the prisoner made prior to the homicide. The defendant offered to prove that the day before the shooting he went to the witness, and stated that he had had trouble with the deceased, and that deceased had threatened him, and defendant asked witness' advice. Witness advised him "not to carry a pistol or anything of that sort, but, if defendant thought it was necessary to carry one, to go down to the chief of police, and get permission to carry one." Defendant offered in this connection to prove that on the next day succeeding the conversation just stated, and on the same day of the homicide, defendant went to the police station and called for the chief of police, but the latter was absent. Defendant stated to witness that a man had been hanging around his house and making threats. Witness said to him that a man had a right to defend his own house. The court excluded the statement upon the ground that they...