Rainwater v. Elmore
| Decision Date | 30 September 1870 |
| Citation | 48 Tenn. 363 |
| Parties | E. D. Rainwater v. Thomas A. Elmore. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM JEFFERSON.
From the Circuit Court, J. P. SWANN, J., presiding.
J. M. MEEK & L. A. GRATZ, for Plaintiff in error.
R. M. MCFARLAND & J. M. THORNBURG, for Defendant.
This was an action of replevin, tried in the Circuit Court of Jefferson county, which resulted in a verdict and judgment for plaintiff, from which the defendant appealed. It seems that about thirty or forty witnesses were brought together by the plaintiff and the defendant, to testify as to the identity of a horse, which was the subject of controversy. Upon the trial, the defendant moved the Court to have all the witnesses put under the rule, and presented the following affidavit in support of his motion:
“E. D. Rainwater v. Thos. A. Elmore.
The defendant makes oath, that in order to have a fair and impartial trial in this cause, justice requires that the witnesses should be put under the rule. He therefore asks an order of the Honorable Court that the witnesses in this cause, be placed under the rule.
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¦(Signed¦Thos. A. Elmore. ¦
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Sworn to and subscribed, this August 18th, 1868.
S. S. McCuistion.
Endorsed--Filed August 18th, 1868.
S. S. McCuistion.”
This motion of the defendant was disallowed by the court, and the trial proceeded.
This is assigned as error, upon which the defendant asks a reversal of the judgment in this case.
There are other errors assigned; but in the view we have taken of this case, it is not necessary that they should be considered.
The Court is of the unanimous opinion, that it is the legal right of either party litigant before a court and jury, upon good cause, shown by affidavit, to have all the witnesses in the cause against him, kept out of the hearing of such as may be undergoing an examination, and apart from them after their examination, so that they do not hear or know the testimony of those who have preceded them in the witness-box; and that an affidavit, setting forth that justice to the party requires that the witnesses shall be put under the rule, leaves the court no discretion upon the subject
We are aware that there is a conflict of authority upon this question, both in this country and in England; and that it has been held by respectable authority that it is matter of discretion to allow or disallow such a motion. But we are at a loss to conceive how the “fair trial,” which the law guarantees to the citizen, whether his life, liberty or property be involved, can be secured to him without a rigid observance of this rule.
The lawyer who has practiced long in jury causes can not have failed to observe that the practice of permitting witnesses to hear each other's testimony has often resulted in a great and gross abuse of public justice.
Human nature is frail, and that frailty is as often illustrated in the witness-box, as elsewhere.
The witness in an excited litigation often becomes the mere partisan of the litigant whose cause he represents. His solicitude in the cause, and his anxiety to win the verdict, are often no less than those of his friend and summoner, whose life, liberty or property, may depend upon that verdict. He comes to regard the adverse party and the adverse witnesses as his adversaries, and often, with scarce a consciousness of the serious obligation that is upon him, lapses into the conviction that the scene before him is a mere tilt and tourney in which he enters to overturn and countervail the testimony of the adverse party. He has heard the evidence of his own party in regard to the transaction, and, perhaps, he remembers it somewhat differently, but a conflict would be fatal; and he often reasons his flexible conscience into the opinion that his own memory is at fault, and the statement of his confederate is the true version, and he therefore corroborates it. He has heard the testimony of the adverse party, and his ingenuity is taxed at once to strike it where it is vulnerable, and to destroy it. A brief and whispered conference behind the bar, and he finds one of his own party who saw the transaction as he saw...
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Sparks v. State
...exceptions created to the general rule of total sequestration. T.C.A. § 24-106; Dougherty v. Shown, 48 Tenn. 302 (1870); Rainwater v. Elmore, 48 Tenn. 363 (1870); Smith v. State, 72 Tenn. 428 (1880); Lenoir Car Co. v. Smith, 100 Tenn. 127, 42 S.W. 879 (1897); Adolff v. Irby, 110 Tenn. 222, ......
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State v. Upchurch
...separated from the witnesses, and examined individually during the trial. Nelson v. State, 32 Tenn. 237 (1852); E. D. Rainwater v. Thomas A. Elmore, 48 Tenn. 363 (1870); see generally Higgins and Crownover, Tennessee Procedure in Law Cases, sec. 1195 In Tennessee Procedure in Law Cases, sup......
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Chamberlain v. Aetna Life & Cas. Ins. Co.
...by affidavit, showing good cause. Upon the presentation of such an affidavit, the Court was left with no discretion. Rainwater v. Elmore, 48 Tenn. 363 (1870). We are not aware of any decision modifying the requirement that the rule is invoked only by affidavit. The practice today, simply st......
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Adolff v. Irby & Gilleland
...or judgment operative as much against him as his partners, who happened to be parties to the record. However, in Rainwater v. Elmore, 48 Tenn. 363, the rule was announced that, upon an affidavit showing the necessity therefor, it was the duty of the trial court to place all the witnesses in......