Appellate Review of Hearsay Issues:

The Tennessee Supreme Court continues to insist that a trial judge's hearsay rulings will be affirmed absent an abuse of discretion. See Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008), collecting cases. But Tennessee Court of Criminal Appeals

Judge Curwood Witt disagrees, and I agree with his disagreement.

Step one is determining whether the extrajudicial statement is offered to prove the truth of the matter asserted. If so, it's hearsay; if not, it's not hearsay. The judge has no discretion.

Carrie Allen left her family home in Bean Station and moved to Knoxville. In 1932 she was 24, working as cashier at the S & W Cafeteria, and living on the second floor of a boarding house at 614 West Church Ave. Louis Fain and his family moved from New Market to Knoxville when he was a young boy; his mother was dead. In 1932 he was about 26, selling illegal Prohibition whiskey, and living with his father and sister and two brothers in the Mechanicsville neighborhood.

One of my favorite Tennessee killers is Daisy Alexander Root. She rid Memphis of cruel husband Brenton Root around 1:20 a.m. on Sunday, Nov. 3, 1935.

Who were these two? Daisy Alexander was born on April 16, 1905, in Decatur, Ala. Soon the family moved to Pontotoc, Miss. The parents separated when Daisy was 11; after divorce her mother married R. L. Roberts. Upon completing high school Daisy moved to Memphis and worked at Goldsmith's, a department store.

Why are so many folks hell-bent on contesting wills? And why are not the dead rising from graves to chastise these hellbenders? I reckon the answers are obvious: greed; impossibility. If you represent a client on either side of these unseemly contests, there are a few procedural issues that you need to be aware of.

How many capitals have we had? Where were they? I pondered these questions while returning from lectures at the Judicial Conference in Murfreesboro, once the seat of government. When I reached my apartment I studied several history books, our three constitutions, and an interesting appellate opinion to find answers. Here's what I found.

The first constitutional convention convened in Knoxville on Jan. 11,1796, in the office of War Department Agent David Henley at the southwest corner of what is now the intersection of Gay Street and Church Avenue. William Blount presided. The document, approved on Feb. 6, designated Knoxville as the initial capital. Article X, Section 1. Knoxville remained the capital through 1811 except for one day.

Settlers and the Cherokee Indians negotiated the Tellico Treaty in 1805. Thousands of acres of Indian land were transferred to the settlers. In return, Kingston was to become the state capital. (Interestingly, Blount had earlier favored that site, perhaps because it is situated at the confluence of several rivers.) The settlers "honored" their side of the bargain by assembling legislators there for a few hours on Monday, Sept. 21, 1807. So Kingston became famous (infamous?) as Tennessee's "Capital for a Day."

From 1812 through 1816, Nashville was the capital city. Then the capital was moved back to Knoxville for the legislative session of 1817.

The General Assembly decided to make Murfreesboro the capital. And so it was from 1818 into 1826. I'm told that Murfreesboro is the geographical center of our state.

Nashville again became the capital in 1826. A second constitutional convention assembled in 1834, drafting what became known as the Constitution of 1834 or 1835, it being ratified in the latter year. In the "Schedule" at the end of the document we find this language:

"The General Assembly which shall sit after the first apportionment of representation under the new Constitution, to wit, in the year 1843, shall within the first week after the commencement of the session designate and fix the seat of government; and when so fixed, it shall not be removed except by consent of two-thirds of the members of both Houses of the General Assembly. The first and second sessions of the General Assembly under this Constitution shall be held at Nashville."

As 1843 approached Democrats favored Murfreesboro and Whigs favored Nashville. The vote was close, but Nashville won out. So has Nashville been our capital from 1826 through the present? I thought so until I spotted an annotation to the 1834 Constitution schedule.

It turns out that we had briefly a fifth capital city: Memphis! How did this happen? Because in early 1862 General Grant was moving up the Cumberland River toward Nashville. On Feb. 10, 1862, the House and Senate passed a joint resolution empowering the governor by proclamation to temporarily change the "Seat of Government." Just in time, it turned out, because Yankees entered Nashville on Feb. 23. The Rebels moved the capital to Memphis.

One of the enactments during the 1862 interregnum incorporated on March 19 the Presbyterian Church in the Confederate States of America. In Donnie Paine's boyhood days, Knoxville had a Presbyterian North and a Presbyterian South. Probably because of Mother's veto power over Dad, younger sister Julie and I were raised in the Yankee branch.

But take a look at Frierson v. The General Assembly of the Presbyterian Church in the United States, 54 Tenn. 683 (1872). William E. Kennedy of Maury County, who had emancipated his slaves to Liberia, had no spouse or children. Much of his estate went by will to the Presbyterian Church South. Challengers alleged that the church did not even exist because the act incorporating the entity was passed in Memphis and was therefore invalid.

Supreme Court Judge (they weren't "Justices" back then) Thomas J. Freeman disagreed. He and his colleagues ruled that the capital city was Memphis and that the bequest to the church was "valid."

So there you have it. Five cities were capitals: Knoxville, Kingston, Nashville, Murfreesboro and Memphis.

Another Question

Finally, another question: Who was the first dean of the University of Tennessee law department? Former Supreme Court Judge Freeman. He had served two terms (1870-1886) before losing the election for a third. In late 1889 he proposed to UT President Dabney that there should be a law school in Knoxville. The first class of eight met in a Deaderick Building law office next to the Customhouse and Post Office on Market Street (then Prince Street) on Feb. 13, 1890. Dean Freeman resigned in early 1891 and died later that year.

Almost three decades after he murdered three humans in cold blood, Cecil C. Johnson Jr. was executed on Wednesday, Dec. 2, 2009 at 1:34 a.m. CST.

The Supreme Court opinion at 632 S.W.2d 542 reports what he did to deserve the death penalty. In 1980 on July 6 Johnson told Victor Davis that he was going to rob Bell's Market on Twelfth Avenue South in Nashville and leave no witnesses. About 10 p.m. he murdered Bobbie Bell (age 12), James Moore, and Charles House. Bobbie's father Bob and Lewis Smith barely escaped death.

In 1853 Major was a black slave who lived on the Looper family farm in Scott County. One night in August of that year he allegedly attempted to rape white teenager Mirah Looper, about 14 years old. He was tried and convicted and sentenced to death four times. Three times the Tennessee Supreme Court reversed, and once the trial court granted a new trial.

Professor Larry Pivnick has published a much needed book for judges, lawyers, and pro se litigants in General Sessions civil trials. You are (or should be) familiar with Pivnick on Tennessee Circuit Court Practice, an indispensable treatise I reviewed in the June 2004 issue of this Journal. Larry exhibits the same blend of scholarship and practical experience in his new work.

Ever heard of it? I confess my ignorance until I stumbled across it in Tennessee Law of Evidence, Fifth Edition, at  §3.15[4]: "A little known presumption in Tennessee deals with the amnesia victim. In a negligence action, it is presumed that the amnesiac acted with due care in the absence of evidence to the contrary." Authors Cohen or Sheppeard wrote those sentences. This author did not.

On Dec. 1, 2009, significant amendments to the Federal Rules of Civil Procedure will take effect. Most important is elimination of current Rule 6(a)(2), which excludes intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days.