Ross v. State

• Decision Date: 27 November 1914
• Parties: ROSS v. STATE.
• Court: Tennessee Supreme Court

170 S.W. 1026

130 Tenn. 387

ROSS v. STATE.

Supreme Court of Tennessee.

November 27, 1914

Appeal from Circuit Court, Greene County; Dana Harmon, Judge.

W. H Ross was convicted of having unlawful carnal intercourse with a girl under the age of consent, and he appeals. Affirmed.

Susong & Biddle, of Greenville, for appellant.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

NEIL C.J.

Plaintiff in error was indicted in the circuit court of Greene county for having unlawful carnal knowledge of one Mackie Burnett, a girl under the age of consent. He was convicted, and sentenced to a term of four years in the state penitentiary. From this judgment he has appealed and assigned three errors: First, that the trial judge erred in refusing to continue the cause on an affidavit filed; secondly, because he refused to grant a new trial for newly discovered evidence; thirdly, that the evidence preponderates against the verdict.

1. As to the refusal of the trial judge to continue the case: The rule which has long been in force in this state is that in the matter of continuance the trial judge has a large discretion, and this court will not interfere with his ruling in such a matter unless it clearly appears that he has abused that discretion. Todd v. Wiley, 3 Humph. (22 Tenn.) 576, 577; Womack v. State, 6 Lea (74 Tenn.) 152. There was no such abuse in the present case. Our reasons were fully stated in an oral opinion, analyzing the affidavit, and they need not be repeated here.

2. The refusal of the trial judge to grant a new trial because of newly discovered evidence: The affidavit contains the following averments:

That after the finding of the indictment, and before the trial "in so far as he was able he went into the community where Mackie Burnett lived, and investigated the question of her character and age. He found out everything at this time he possibly could, both in the community where Mackie Burnett lived and elsewhere. That those knowing anything about it would not talk to him before the trial of the case, so that he was not able to find out much about Mackie Burnett, except that he was informed that W. H. Brown knew something detrimental to her character, and this witness he had subp na issued for, and placed in the hands of an officer for service, but the officer was unable to find him, as he was in hiding and trying to avoid service. That affiant used all diligence in finding out and obtaining testimony in his behalf in so far as he was able to do so. That after the trial of the case, information came to him that certain persons knew facts material to his side of the case, and he immediately sent parties to see these witnesses, as affiant was in jail at this time. He therefore procured affidavits which were taken on the motion for a new trial. That these parties would not talk until after they thought the trial was over and they would not be used as witnesses. In such a case as this with which he is charged it is almost impossible to secure testimony from persons who know anything detrimental or derogatory to the character of Mackie Burnett. Most of the witnesses lived in the community where Mackie Burnett lived and were friends of hers or of her family. Under the circumstances, it was impossible to obtain the testimony of the witnesses whose affidavits were taken and oral testimony given on the motion for new trial, at the time the trial took place. Affiant did not know what these witnesses knew until after the trial, and then used every reasonable effort to obtain their affidavits and oral testimony."

Affidavits of several persons were introduced showing lewd conduct and language on the part of Mackie Burnett, in the summer and fall of 1912. This evidence, however, could not avail plaintiff in error, because it appears he had seduced her in the previous January.

Other affidavits were filed stating and tending to show that in January, 1912, the date of the seduction, Mackie Burnett was 22 or 23 years old, and therefore not under the legal age of consent, which in this state is 21 years.

This evidence was material and important, but was not available to plaintiff in error because of defects in his affidavit and in the affidavits of the proposed witnesses.

The prisoner's affidavit must show reasonable diligence; that is, ordinary diligence to obtain the evidence before trial. Tabler v. Connor, 60 Tenn. (1 Baxt.) 195, 197. A mere averment of due diligence is not sufficient; the facts constituting diligence must appear. Hamm v. Romine, 98 Ind. 77; Anderson v. Hathaway, 130 Ind. 528, 30 N.E. 638. The facts constituting diligence must be specifically set out. Keisling v. Readle, 1 Ind App. 240, 27 N.E. 583. Where the diligence used is alleged to have consisted of inquiries, the time, and place, and circumstances must be stated. Id. Mere general statements that affiant inquired among persons likely to know are not sufficient; the particulars must be shown. Hoban v. Sandford & Stillman Co., 64 N. J. Law, 426, 45 A. 819. It must appear that such inquiries were made as were likely to elicit the information desired, and not mere general inquiries. Poer v. Johnson, 48 Ind.App. 596, 96 N.E. 189. Such facts must be stated as make it clear that the failure to produce the evidence was not through the fault or want of diligence of the party applying for the new trial. Beach v. Schroeder, 47 Colo. 312, 107 P. 271. The reason is that the trial judge and the court of review cannot form an opinion...