Summary
In State v. Wardlaw, 160 S.C. 116, 169 S.E. 840, we held that statements and affidavit of accused's witness made in accused's absence before trial held competent to contradict witness.
Summary of this case from State v. MillerOpinion
13653
June 17, 1933.
Before GRIMBALL, J., Newberry, September, 1932. Judgment reversed, and cause remanded for a new trial.
Tom Wardlaw was convicted of murder, and he appeals.
The exceptions requested to be reported follow:
The appellant now asks the Court to reverse the said judgment and to set aside the said sentence and judgment and the verdict of the jury upon the following grounds:
EXCEPTIONS(1) Because his Honor charged the jury as follows: "I charge you gentlemen in considering the whole case that you are to disregard any statement that may have been testified to in this case as having been made when the defendant was not present."
It is submitted that the foregoing charge made by his Honor without any motion from either the State or the defendant eliminated from the consideration of the jury testimony which had been taken, and which was in the record, and which was favorable to this appellant, and this appellant was prejudiced thereby.
(2) Because it is respectfully submitted his Honor was in error in directing the jury to disregard any statement that may have been testified to in the case as having been made when the defendant was not present, when it is respectfully submitted that the statement alleged to have been made by Ben Watt to the solicitor in this case, and which the State offered in evidence, and which was admitted in evidence without objection, was in favor of the appellant in this case for the reason that such statement corroborated the testimony of Ben Watt given at the trial and supported such testimony, which was being attacked, and therefore it was prejudicial to the appellant in this case for his Honor to eliminate the said statement when no motion was made that the same be done, either by the State or the appellant, in open Court.
(3) Because his Honor erred in effect in charging the jury to disregard the statement alleged to have been made by Ben Watt to the sheriff of Abbeville County while he, the said Ben Watt, was confined in the jail at Abbeville, S.C. The sheriff had undertaken to contradict the witness, Ben Watt, but, as a part of his testimony, had related without objection on the part of the State the whole conversation which took place between him and Ben Watt, in which conversation Ben Watt had made a statement corroborating the testimony of the appellant in this case. The testimony so given by the sheriff was favorable to this appellant. It is submitted that, after the sheriff had been allowed to contradict the testimony of Ben Watt, and after the matter had been argued to the jury, as it must have in this case, it was highly prejudicial to the appellant to take away from the consideration of the jury the benefit and advantage which the appellant might have had from such statement, especially as no motion was made either by the defendant or the State in open Court that such statement be eliminated.
(4) Because it is respectfully submitted that the Court erred in permitting the solicitor in the closing argument in this case to place his hands upon the head of one of the jurymen and to illustrate upon his neck the manner in which the State contended the fatal blows had been struck. The actions of the solicitor in this respect had the effect of making a witness out of the juryman, and it was therefore prejudicial to the appellant.
(5) Because the Court erred in allowing the solicitor in the closing argument of the State to place his hands upon the head of one of the jurymen trying the said case, and to illustrate upon his neck the manner in which the State claimed the fatal blows were struck, it being submitted that such actions on the part of the solicitor could have no other effect than to inflame the minds of the jurors, and especially of the juror appealed to against the appellant, and therefore to deny to the appellant a fair and impartial trial.
Messrs. Alan Johnstone and William P. Greene, for appellant, cite: As to competent evidence for consideration of jury: 57 S.E., 721; 93 S.E., 173; 88 S.E., 625; 57 S.C. 358; 70 S.E., 315; 70 S.C. 377; 81 S.C. 340; 113 S.C. 205.
Messrs. H.S. Blackwell, Solicitor, Hubert C. Cox, Steve C. Griffith, for respondent, cite: As to evidence whether witness worthy of belief: 70 S.C. 183; 58 S.C. 70.
June 17, 1933. The opinion of the Court was delivered by
The defendant-appellant was indicted in Abbeville County at the September, 1932 term of the General Sessions for that County for the murder of Andrew J. Ferguson on 8th April, 1932. A change of venue was had to Newberry County, where the case came on for trial at the October term, and resulted in a conviction for murder.
From the sentence imposed he appeals to this Court on exceptions which will be reported.
The State charged that the appellant slew A.J. Ferguson in an altercation which occurred in a field where appellant was plowing.
On trial Ben Watt was a witness for the defendant. On cross examination he was interrogated in regard to certain statements it was alleged he had made to the sheriff while in jail, and in reference to an affidavit he had made for the solicitor. In reply for the purpose of contradicting Watt, the State put on the stand Sheriff McLane, who gave in detail the statement made to him by Ben Watt, and the affidavit he made was introduced in evidence. No objection was made to the testimony as to such statements, nor to the introduction of the affidavit.
The appellant claims that, so far from contradicting Watt, the statements made to the sheriff corroborated Watt's testimony, as well as defendant's own testimony on the stand, and were most helpful to defendant.
The presiding Judge charged the jury, among other things in these words: "I charge you, Gentlemen, in considering the whole case that you are to disregard any statement that may have been testified to in this case, as having been made when the defendant was not present."
It is conceded that defendant was not present when Watt made the statements to the sheriff, nor was he present when the affidavit was made for the solicitor.
Such statements and affidavit were competent to contradict the witness Watt (3 Russell, Crimes, 564, 620); but under the circumstances of this case, if objected to by the solicitor, would have been incompetent to corroborate the testimony given on the trial by either Watt or the defendant as witnesses (1 Greenleaf Ev., § 469; State v. Thomas, 3 Strob., 271).
In charging the jury to disregard such statements, the trial Judge repeated the error committed by the late Judge Gantt, in State v. Free, 1 McMul., 494, 495. There, Free was convicted of trading with a slave on the testimony of one Petigru. The defendant offered testimony to show that Petigru had been guilty of taking two greatcoats in Columbia. After the argument, the trial Judge charged the jury to disregard the testimony as to Petigru's alleged infamy. The Court of Appeals by Judge Butler said: "The testimony introduced to show that Petigru had been guilty of having taken two coats, with a view to discredit him, was clearly incompetent; and there is little doubt that the presiding Judge would have rejected it, if an objection had been made to its competency. * * * No objection was made to the introduction of the testimony. The question is, how was it to be regarded after it was permitted to go to the jury. Incompetent testimony is frequently received by consent. * * * When such testimony is so received, it is usually regarded as competent testimony is — to be believed or not believed, as the jury may think proper. The effect and influence of testimony must depend upon the minds of those who are to be governed by it. What weight will be given to testimony is a question for the jury, and not for the Judge." The admissibility of the declarations "depended on its competency, and this was conceded when no exception was taken at the time it was offered." State v. Rankin, 3 S.C. 448, 16 Am.Rep., 737; Burris v. Whitner, 3 S.C. 512; State v. Washington, 13 S.C. 457.
For these reasons, the first and second exceptions are sustained.
As there must be a new trial, because of the withdrawal of this evidence from consideration by the jury, it is unnecessary to consider the fourth and fifth exceptions.
The solicitor is not a partisan in conducting the prosecution, and should not go beyond the limits of fair argument based on the evidence in presenting the case to the jury. The conduct of the solicitor was in the presence of the trial Judge, who would have corrected any misconduct if seen or called to his attention either during the trial — or on motion on the minutes for a new trial. The appellant's counsel should have called such misconduct to the attention of the trial Judge, at the latest on motion for new trial. The trial Judge was never asked to review, or pass upon, the conduct of the solicitor. Objection thereto cannot be made for the first time on appeal. White v. So. Ry. Co., 142 S.C. 306, 140 S.E., 560, 57 A.L.R., 634; State v. Campbell, 150 S.C. 449, 452, 148 S.E., 472. The fourth and fifth exceptions are overruled.
The judgment of the Court is that the judgment of the Circuit Court be, and is hereby, reversed, and the case remanded for a new trial.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.