Ware v. State

• Decision Date: 22 March 1902
• Citation: 67 S.W. 853
• Parties: WARE v. STATE.
• Court: Tennessee Supreme Court

Page 853

67 S.W. 853

WARE v. STATE.

Supreme Court of Tennessee.

March 22, 1902.

Appeal from criminal court, Davidson county; W. M. Hart, Judge.

Green Ware was convicted of murder, and brings error. Affirmed.

Melvin Young, Leroy McGregor and W. H. Cooper, for plaintiff in error. G. W. Pickle, Atty. Gen., and M. P. Estes, for the State.

BEARD, J.

While it was orally stated at the bar, and is reaffirmed in the petition before us, that the present is the first appliaction for a rehearing in this case, the fact remains that it is the second; the first asking for a rehearing only on one point, while this asks for re-examination of the whole record. This is done, as is stated in the petition, under the constraint of a high sense of duty, imposed by the oath of office, which the counsel for the petitioner have taken, and because, as is averred by counsel, they think they "are correct as to the facts," and they "know they are correct as to the law." The court is not lacking in a due regard for the professional zeal which prompts this second application, and, but for the pressure of other and important matters, would cheerfully gratify counsel by a thorough reinvestigation of the entire record. But, circumstanced as the court is, counsel can well understand that its whole time, nor the greater part of it, cannot be devoted to any one case. Out of deference, however, to the importunity of the present petition, we have devoted such time to a re-examination of the case as could be spared, and as its importance required, and will now announce the result reached by us.

1. We entertained no doubt, as stated in our original disposition of this case, that the jury were abundantly warranted in finding a verdict of murder in the second degree against the plaintiff in error, and further investigation has not served to weaken this conviction. It would be a waste of time to restate the facts disclosed in the record.

2. The affidavits filed on the motion for a new trial were not overlooked, but as this motion, so far as it was based in these affidavits, was so lacking in merit, it was assumed that the counsel were not serious in their suggestion or assignment that the trial judge was in error in disregarding these affidavits. One of these is the affidavit of a boy of 12 years of age at the time of his examination, and less at the time of the homicide, who undertook to give a detailed statement of the conversation of the parties, as well as of their acts, which, upon its face, bore unmistakable marks of fabrication. In addition, no sufficient reason is given why plaintiff in error did not avail himself of this party's knowledge on the trial. It is true Ware says in his affidavit that he did not know what he could prove by him until after the trial; but, if what this boy says is true, he might easily have known it. The boy's affidavit places him some 481 feet away from the scene of the difficulty, but near enough, according to his statement, to see what was done and to hear distinctly what was said. Green Ware knew of his being there, because he states that in passing away from the place where the deceased was stabbed he addressed a remark to the affiant. This being so, it was inexcusable negligence upon the part of plaintiff in error not to have ascertained before the trial what this boy would testify to. As to the affidavits of the two negro women, used on the motion for new trial, they were witnesses for the plaintiff in error, and there was no good reason assigned why they were not examined as to the matters set out in these affidavits. In addition, upon the disclosures made in the record as to these women and other associates of Ware, the trial judge was entirely right in declining to give credence to their statements.

3. We now approach the third proposition submitted, embracing, as it does, what the counsel say they "know to be the law of the case," — a principle which, as asserted by them, is "as old as the hills," and which, they assert, "should be permitted to stand for all time; more eternal than the hills." That principle they insist has been disregarded by the court in its disposition of this case, and, being so disregarded, is likely to be the beginning of unnumbered ills. They...