Hudson v. State

• Decision Date: 31 December 1866
• Citation: 43 Tenn. 355
• Parties: Richard Hudson v. The State.
• Court: Tennessee Supreme Court

43 Tenn. 355

Richard Hudson

v.The State.

Supreme Court of Tennessee.

December Term, 1866.

FROM MACON.

The plaintiff in error was convicted at the November Term, 1866, and sentenced to three years' imprisonment in the penitentiary; from which judgment he appealed. Judge ANDREW MCCLAIN, presiding.DEWITT and HEAD, for Hudson.

THOS. H. COLDWELL, Attorney General, for the State.

SHACKELFORD, J., delivered the opinion of the Court.

This is an indictment against the plaintiff in error for an assault with intent to kill. He was tried before a jury of Macon County, found guilty, and sentenced to serve three years in the penitentiary. A new trial was moved for, and was overruled; from which an appeal was taken to this Court. The facts necessary to be stated, for an understanding of the principles involved, are: The plaintiff in error, in 1864, with several others, on the night of the 11th of November, went to the house of the prosecutor, and a difficulty ensued. The prosecutor shot and wounded one of the party, (King,) of which wound he died the next day. The plaintiff in error struck the prosecutor, knocking him down, and fracturing his skull. The plaintiff in error, with several others, were at the house of the prosecutor on the Sunday previous, when angry words ensued, and threats were made by the plaintiff in error.

Joseph King and G. W. Meadows were jointly indicted with the plaintiff in error, tried at a previous term of the Court, and acquitted. When the case was called, the plaintiff in error moved the Court for a change of venue; and, in support of the motion, filed his affidavit, and that of two others; the substance of which was, that he could not have a fair and impartial trial of the cause in the county, in consequence of the prejudice against him; the other two defendants having been tried in the county, and acquitted, for the same offense; that an impartial jury could not be selected.

The motion was overruled, to which the defendant excepted. The first question presented, is: Did the Court err in refusing to change the venue? By the Act of 1827, chap. 30, all laws authorizing a change of venue in criminal cases, were repealed. Before the passage of this Act, a change of venue was had, upon the application of the prisoner, if there was a prejudice against him.

The Act of 1827 introduced a new policy. It took away from the prisoner all right to a change of venue, on his application, and vested the power in the Circuit Judge, when a fair and impartial trial could not be had, and that could only be determined after an attempt to impanel a jury. Section 5195 of the Code, has relaxed the rule to some extent. It provides, upon the application of the defendant in a felony case, if it is made to appear satisfactory to the Court, that, from undue excitement against a prisoner in the county where an offense is committed, or any other case, a fair and impartial trial can not probably be had; or when the Court, in any criminal case, upon an attempt to impanel a jury for the trial of the cause, is of opinion that a fair and impartial trial can not be had in the county where the cause is pending, the venue shall be changed to the nearest county in, or with. out, the judicial circuit, in which the prosecution is pending, where the same causes do not exist. By this provision of the Code, the rigid rule prescribed by the Act of 1827, was relaxed. A sound legal discretion was vested in the Circuit Judge. He must be satisfied, from the facts presented, the prisoner can not have a fair and impartial trial in the county.

The record in this case, does not disclose such a state of facts, that would authorize this Court to reverse the action of the Circuit Court. It is silent as to the number of jurors who were summoned; and, from what appears in this record, an impartial jury was obtained without difficulty. The affidavit of the plaintiff in error, and the accompanying affidavits, do not disclose a state of facts, that would authorize the Court to say the Judge erred in refusing the application; and in his refusal we think there was no error.

2. On the trial of the cause, the plaintiff in error offered to introduce as evidence, the dying declarations of King, who was mortally wounded on the night of the assault, and died the next day. They were made under the full belief of impending dissolution. King, in his dying declaration, gave a detailed statement of the affray, the effect of which was to exonerate the plaintiff in error from all criminal intent. The proof was objected to by the counsel of the State, and the objection sustained by the Court, to which the plaintiff in error excepted.

The question presented, is: Did the Court err in rejecting the testimony? Dying declarations are made in extremis, when the party is at the point of death, when...