Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-30
4Iniun and 9ispatth.
DECISIONS OF THE SUPREME
COURT.
Nashville, December Term. IS66.
Reported for the Union and Dispatch boy
Lindsey and Reid.
Richord Hudson y. SAD.


Reported for the Union and Dispatch by
Lindsey and Reid.
Richard Hudson u. State
3. CHANGE OF VENUE: To change the venue in
"a criminal case rests in the sound legal discre-
tiou Of the Circuit Judge. and should only be
moved for after an attempt 10 empanuel jury:
D EVIDENCE: Dying declarations are restricted
90 the trial Of the identical homicide Of the per
-on who makes the declaration.
3 SANE: No evidence that does not tend 10
slucidate the issue viii be received.
This is an indictment against the plain
TIA in error for an assault with intent 70
kill. lie was tried before Jury Of Macon
county, found guilty and sentenced TO serve
three years in the penitentiary. A new
trial was moved for and was refused, from
which an appeal was taken 10 this court.
The facts necessary 10 be stated for an IN
derstanding of the principles involved are
the plaintiff Ia error, in 1884, with
several others, on the night Of the llth Of
November, went 70 the house Of the prose-
cutor and a difficulty ensued. The prose
cutor shot and wounded one Of the party,
King. Of which wound be died the next
day The plaintiff in error struck the
prosecutor, knocking him down and frac-
turing his skull. The plaintiff in error,
with several Others, were at the house Of
the prosecutor on the Sunday previous,
whes angry words ensued, and threats we're
made by the plaintiff in error. Josephus
King and J. w. Medows were Jointly in
dicted with plaintiff in error, tried at
previous term OF the court and acquitted.
When the case was called, the plaintiff in
error moved the court for a change Of
venue, and in support Of the motion filed
his affidavit and that Of the two others
the substance OF. which MAS that he could
not have a fair and impartial trial Of the
cauae in the county, in consequence of the
prejudice against him, the other two deien-
danis having been tried in the county
and acquitted for the same ofense that an
impartial jury could not be selected. The
motion was overruled, 10 which the defend
ant excepted. The first question presented
ia, did the court err in refusing to change
the venue. By Che act Of 1892, chap. 30,
all laws authorizing 3 change Of venue in
criminal causes were repealed. Before the
passage Of that act, change Of venue Wss
had upon the application Of the prisoner,
&c there was a prejudice against him.
The act OF 1897 introduced new policy.
IL took away from the prisoner all right TO
n AtAuAA ~ " ffalANN AZ IN ApDlAAaAADA AA4A
rested the power in the Circuit Judge when
a fair and impartial trial could not be bad,
and that could only be determined after an
attempt 10 empannel jury, Sec. 6l95 Of
the Code has relaxed the rule 10 some eX-
tent ltproyides upon the application Of
the defendant in felony case, if II is made
10 appear satisfactorily 10 the court, that
from undue excitement against the prisoner
in a county Where an oiense is committed
or from any other cause, a fair and impartial
trial cannot probably be had, or when the
court IN any criminal cause, upon an attempt
90 empunne Jury for the trial Of the cause,
Is Of opinion that a fair and impartial trial
cannot be had in the county where the
cause ia pending, the venue is changed
10 the nearest county, in or without
the judicial Circuit in which the prose-
cution is pending, where the same
causes do not exist. BY this provision Of
the Code the rigid rule prescribed by the
act Of 1897 was relaxed. A sound legal
discretion wan vested in the Circuit Judge.
He must be satisfied, from the facts pre-
scented, the prisoner cannot have fair and
impartial trial in the county. The record
in this case does not disclose such a state Of
facts that would authorize this court 10 re-
verse the action Of the Circuit Court. IL il
silent as 10 the number Of jurors who were
summoned, and from what appears in this
record an impartial jury wasobtained with
ont difficulty.
The affidavit Of the plaintiff in error, and
the accompanying atiidayits, do not disclose
a state Of facts that would authorize this
court 10 say the Judge erred in refusing
the application; and in his refusal we think
there was no error.
Second-On the trial Of the cause the
plaintiff in error offered 10 introduce as
evidence the dying declarations Of King,
who was MORALLY wounded on the night Of
the assault and died tho next day. They
we're made under the full belief Of impend-
ing dissolution. King in his diving de
clarations gave 4 detailed statement Of
the afiray, the effect of which was to
cxonerate the plaintiff in error from
all criminal intent The proof was OBJ
ected to by the counsel for the State.
The objection was sustained by the court,
10 which the plaintiff in error excepted.
The question presented is this Did the
court err inrejecting the testimony Dying
declarations are made M ertremiS, when
the party is at the point Of death when
every hope of this world is gone; when
every incentive 10 falsehood is silenced and
the mind il induced by the most powerful
considerations 10 speak the truth, and il
considered by the law as creating an obi
CATION as great az that created by an oath,
aud in prosecutions for murder il is the
common practice 70 admit as evidence the
diving declarations Of the person with
whose murder the prisoner stands charged.
There have been some conflicts in the de-
cisions Of the courts on the question as 10
the admissibility Of dying declarations in
cases other than murder But the rule is
now settled by a series Of cases, the decla-
ton ia eriresis is restricted 10 the trial of
the identical homicide of the person who
makesthe declaration. lst Phillips on Evil
dence. 2S6, and note 49, They were not
admitted ON a trial Cor robbery, though the
party died from violence against him in It's
commission. Rex a.. Laud, 4th Darlington
a Payne 233, Ist New Jersey Reports l9G.
In 3rd Greenleaf on Evidence, 900, the
principle is stated: con trial of prisoner
for robbery, the dying declarations OF the
person robbed are not admitted against
the prisoner. Such evidence, though come
times received, being now held admissible
only in the charge Of the murder Of the
declarant We endorse and approve the
principle, aud think that il is against sound
POLICY TO extend the rule 10 cases where
the prisoner is not on trial on the charge Of
the murder Of the declarant, and there was
no error Of the court In rejecting the tes-
umony.
Third.-On the trial Of the cause, the
court permitted evidence TO 20 20 the Jury
connecting the plaintiff In error with band
of men known a. Miles men = that they
we're irregular soldiers and marauders.
committing robberies, taking horses and
mules, etc. etc; that Richard Hudson,
brother Of the plaintiff in error, was
Lieutenant IN that band. There is no
proof showing plaintiff in error connected
with the band, though his brother was
Lieutenant Of the band. The court also
permitted the prosecutor TO prove that he
was informed, a few days before the afirav.
that the son Of Robert Newton told him
that sam Hudson had been sent for by the
plaintiff in error to attack him, (the prose
cutor) This testimony was objected 10 bv
the plaintiff in error. The objection was
oyerruled and the evidence permitted 10
go TO the Jury. No principle Of the crimi-
nal law Is now more clearly settled than
.aat evidence that doesE tend 10 elucidate
tho issue win not be received. The
fact that Mile men were a band OF
robbers bad no connection with the commits
sion Of the ofeuse by the plaintiff in error,
though the brother OF .he plaintiff in error,
Sam. Hudson, was present on The night OF
the difficulty, and was a lieutenant in
Miles band" and did not in any way tend
10 prove the guilt or Innocence Of the plain
hd In error; that they were robbers and men