Smithson v. State

• Decision Date: 03 April 1913
• Citation: 155 S.W. 133,127 Tenn. 357
• Parties: SMITHSON v. STATE.
• Court: Tennessee Supreme Court

155 S.W. 133

127 Tenn. 357

SMITHSON v. STATE.

Supreme Court of Tennessee.

April 3, 1913

Error to Circuit Court, Williamson County; Douglass Wikle, Judge.

P. H Smithson was convicted of manslaughter, and he brings error. Reversed.

J. C Eggleston, E. M. Hearn, and D. E. McCorkle, all of Franklin for plaintiff in error.

W. W. Faw, Asst. Atty. Gen., for the State.

WILLIAMS J.

This case is before this court a second time, on a conviction at a third trial for the crime of manslaughter and assessment of punishment at two years in the penitentiary.

The opinion of this court on the former appeal is reported in 124 Tenn. 218, 137 S.W. 487, 36 L. R. A. (N. S.) 397. On the trial in the court below, counsel for state, in advance of the production of any evidence, asked that the jury be caused to retire, in order to a submission to the trial judge of a motion. In the absence of the jury, counsel for the state stated that they had been informed that counsel for the defendant purposed reading to the jury in the argument of the case this court's opinion so reported, that the prosecution objected to such reading, and it was moved that the court rule in advance respecting same. The court stated that such reading would be improper, since this court in that opinion commented on the facts relating to the motives of the deceased and of plaintiff in error, as disclosed on such former trial, but stated that he would rule on the question if and when the defendant's counsel offered to read the opinion, which they had just asserted their intention to do. Thereafter there was no such offer or effort made. For this reason there is no error, under the assignment.

But, on broader grounds, the ruling of the trial judge was not erroneous, in that it was within his sound discretion to deny the reading of the opinion so treating of facts and motives; and we think his indicated ruling would have been far from being improper. 2 Enc. Pl. & Pr. 710, citing State v. Wait, 44 Kan. 310, 24 P. 354; Williams v. State, 83 Ala. 68, 3 So. 743; Brown v. State, 46 Ala. 176; 1 Stand. Enc. Prac. 811, 814; State v. Whit, 50 N.C. 224, 72 Am. Dec. 533; State v. Rideau, 118 La. 385, 42 So. 973; Cannon v. State, 41 Tex. Cr. R. 488, 56 S.W. 351.

Another assignment of error, here to be treated of, relates to alleged misconduct of counsel of the state and the trial judge touching the argument of the case before the jury.

The facts appear to be: While the plaintiff in error was on the witness stand on his last and third trial before a jury, he was asked by counsel of the state whether, at the committing trial before the justice of the peace or at any time before his second trial before a jury, he had ever publicly said that he killed deceased, but did it in self-defense; and attention was directed to his opportunity to have so stated on the first trial.

On cross-examination, by way of rebuttal, plaintiff in error, in answer to questions by his own counsel, explained that on his preliminary examination, and on his first trial before a jury, no testimony whatever was introduced in his behalf.

In his argument before the jury, one of the counsel for the state told the...