Poe v. State

• Decision Date: 31 December 1882
• Parties: John and Cicero Poe v. The State.
• Court: Tennessee Supreme Court

78 Tenn. 673

John and Cicero Poe

v.The State.

Supreme Court of Tennessee.

December Term, 1882.

FROM FRANKLIN.

Appeal in error from the Circuit Court of Franklin County. J. J. WILLIAMS, J.

SIMMONS & CURTIS for Poe.

A. S. MARKS and ATTORNEY-GENERAL LEA for The State.

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

The prisoners were convicted of murder in the first de gree, and sentenced one of them to death, and the other to imprisonment for life, and appealed in error.

The first error relied on is in the action of the circuit court in refusing the application of the prisoners for a change of venue. By the act of 1875, ch. 6, it is left “to the sound discretion of the court” whether there shall be a change of venue. And the discretion of the trial judge, we have repeatedly held, will not be revised except in a clear case of abuse of that discretion: Holcomb v. The State, 8 Lea, 417; Porter v. The State, 3 Lea, 476. The application for a change of venue in this case, as in the first of the cases cited, was supported by the affidavits of the prisoners and of five other persons. On the other hand, the State called witnesses to show that there was no undue excitement against the prisoners until the trial judge suggested that any additional testimony would be merely cumulative. And the correctness of the ruling of the judge is evidenced by the fact that a jury was obtained without much delay, and a trial had without any exhibition of popular excitement. When the prisoners were first arrested in February, 1881, the people living in the vicinity of the place where the crime was committed were inflamed against the prisoners, and mob violence was threatened. Under these circumstances the prisoners were entitled to a continuance because of the undue excitement, as held by this court upon appeal from the judgment rendered against them: Poe v. The State, 8 Lea, 647. Nothing of the kind occurred, or appears to have existed at the time of the second trial. All excitement had died out, a jury was readily empanelled, the witnesses on both sides introduced and examined, and a verdict rendered in the usual way. The bill of exceptions fails to show any abuse of discretion by the trial judge in refusing to change the venue.

The prisoners were brought by the sheriff to the bar for trial manacled together by the right wrist of one of them being linked by a light chain to the left wrist of the other. After the first witness for the State had been examined, and the second witness put upon the stand, the prisoners, by their attorney, moved the court for an order on the sheriff to remove the manacles while the prisoners were in open court before the jury, upon the ground that it was an unlawful restraint upon the prisoners, and prejudicial to their rights while on trial to be thus manacled. The trial judge declined to make the order, and this is assigned as error.

When the motion for the removal of the manacles was made by the prisoners, the district attorney-general not only made no objection, but stated that he was willing and would consent that the shackles be removed. The trial judge declined to make the order asked for. His Honor said the prisoners had demeaned themselves with propriety before the court, and the fact that they were manacled should not operate against them, but the loose manner in which they were guarded required either the manacles, or some more stringent orders to the guards which would be equally unpleasant to the prisoners. His Honor further says in the bill of exceptions as a reason for his action, although he did not state the facts in open court at the time of his ruling, that one of the prisoners had been twice before the court on charges of murder, on one of which he was convicted; that he had escaped from jail, and was a fugitive from justice when captured; that on another occasion he had escaped from his guard although recaptured; that both prisoners while in jail on this charge had been furnished with arms of a dangerous character by unknown persons, and with keys to unlock their handcuffs; that while in jail at Nashville they had found means or implements with which to make their escape, and had succeeded in getting out of their cell. The facts, his Honor said, seemed to indicate that the prisoners had conferedates ready in any contingency to assist them. They were desperate men, and if unmanacled, the court was of opinion from observation that the accused could easily disarm the guard nearest them, and with their arms ovepower other guards, and in the confusion make their escape, if they had confederates near, willing to assist them. For these reasons, the court declined to control the discretion of the sheriff.

The result of the authorities upon the point raised by the motion of the prisoners, has been clearly expressed by this court in a recent case. “A prisoner,” it was there said by the Chief Justice, “should not during his trial be manacled or handcuffed, but should be left free from shackles, unless some such restraint should be necessary to prevent escape:” Matthews v. The State, 9 Lea, 128. Or, as it has been otherwise expressed by the Supreme Court of another State: “A prisoner undergoing trial should be free from shackles; but if the court or sheriff deem them necessary to prevent escape, the prisoner may be kept in irons during the trial, and this will not be ground for reversal.” In other words, it is left to the sound discretion of the trial court whether the prisoner should be kept in shackles or not. And the appellate court will not revise its action except in a clear case of the abuse of that discretion. What would show an abuse of discretion may admit of doubt: State v. Harrington, 42 Cal., 165;State v. King, 64 Mo., 592. But the record before us clearly shows no such abuse.

The prisoners were indicted for killing K. E. Baker on the night of February 8, 1881, at a country store. Baker and one Ball were passing the store about 12 o'clock at night, and noticing a light through a crevice as they approached the store, called out for the owner when in front of the building. Two men made a hasty exit from the rear window of the store, came around the corner, and commenced firing at Baker and Ball. These latter named persons turned their horses' heads, and started off, but Baker was killed, receiving two shots through the body, the balls entering the back, and coming out in front. The proof leaves no doubt that the persons who fired the fatal shots were engaged in robbing goods from the store at the time, some of which they carried off with them. There is proof tending to show that a portion of these goods were found in the possession of the prisoners when arrested about five days thereafter, and that the prisoners then gave themselves false names. A murder committed in the perpetration of any robbery, burglary, or larceny is murder in the first degree by the Code, sec. 4598. The trial judge charged the jury: “If it appears that a murder has been committed, and at the time and place a theft or robbery is shown to have been committed, the finding soon thereafter of the stolen articles in the possession of the party, if unexplained, is a strong circumstance tending to show such to be the guilty party, and should be given such weight as you may think it entitled to in connection with the other evidence in the case; and if it be in the power of the accused to explain their possession and they do not do so, this intensifies and makes the evidence of their guilty possession stronger....