State v. Sullivan

Decision Date20 February 1895
PartiesSTATE v. SULLIVAN.
CourtSouth Carolina Supreme Court

McIver C.J., dissenting.

Appeal from general sessions circuit court of Anderson county Ernest Gary, Order Judge, and W. H. Wallace, Case Judge.

J. Mims Sullivan, convicted of murder, appeals. Pending appeal, a motion was made by defendant for a new trial, on the ground of after-discovered evidence, overruled, and, on appeal, the order overruling it affirmed. Reversed. [1]

S. W Melton, Perry & Heyward, J. A. McCullough, J. W. Gray, J. E. Breazeale, Murray & Watkins, and M. L. Bonham, for appellant.

M. F. Ansel, Earle, Orr & Mooney, and Tribble & Prince, for the State.

GARY J.

This was a motion for a new trial, on the ground of after-discovered evidence, previous leave therefor having been granted by the supreme court. All the affidavits used in the supreme court upon the motion to suspend the hearing of the appeal until the appellant could make a motion in the circuit court for a new trial, on the ground of after-discovered evidence, were used on the circuit. Among these was the affidavit of W. B. Stoddard, which will be set out in the report of the case. The said W. B. Stoddard died suddenly, subsequent to the hearing of the motion to suspend hearing of the appeal by this court, and before the hearing of the motion herein on circuit.

After hearing read the said affidavits, and after argument of counsel, his honor, Judge Gary, signed the order, which will also be incorporated in the report of this case. The following is appellant's exception to said order: "His honor erred in holding that, W. B. Stoddard having died since the making of the affidavit, the same could not, under the rules of law, be used on the trial of the cause, and it, therefore, not appearing that the result would probably be different from the other evidence exclusive of this, the motion should be refused; whereas he should have held that the said affidavit was properly before the court, was competent for the purposes of said motion, and was entitled to as much consideration as if the said W. B. Stoddard had not died." If the circuit judge had granted a new trial, the testimony of W. B. Stoddard could not have been introduced in evidence upon such trial, because of the death of the said W. B. Stoddard, and the circuit judge was not in error in refusing to consider said affidavit. The courts are not organized for the purpose of deciding legal abstractions. These views are in harmony with the principles announced in the case of State v. Ezzard, 19 S.E. 854, the syllabus of which is as follows: "A motion to suspend an appeal, to enable defendant to move for a new trial on the ground of newly-discovered evidence, will be overruled where it is supported only by affidavits of defendants, who did not testify on the trial, as to his connection with the transactions out of which the prosecution arose, and of witnesses resident beyond the jurisdiction of the court." (Italics ours.) The importance of the fact that the witnesses are within the jurisdiction of the court is shown by the case of State v. Files, 3 Brev. 304, in which the court, in refusing a motion for continuance on the ground of the absence of material witnesses, says: "Three things are necessary: (1) That the witness is really material, and appears to the court so to be; (2) that the party who appears has been guilty of no neglect; (3) that the witness can be had at the time to which the trial is deferred." It is the judgment of this court that the order of the circuit court be affirmed.

On the Merits.

J. Mims Sullivan, the appellant herein, was indicted for murder, in killing Herman G. Gilreath, in Greenville, in said state, on the 14th of June, 1892. The case was continued by the defense on account of the absence of material witnesses, and at the fall, 1892, term of court, the defense moved for a change of venue, and challenged the array of jurors, on the ground that the sheriff of Greenville county, who was one of the officers charged with drawing the juries and with summoning them, was a half-brother of the deceased. The challenge to the array was sustained, the venue changed, and the case ordered to Anderson, for trial. The case came on for trial at the October, 1893, term of the court of general sessions for Anderson county, before his honor, W. H. Wallace, presiding judge, and a jury duly impaneled. Testimony was introduced in behalf of the state, and also in behalf of the defendant. After being charged by his honor, the presiding judge, the jury rendered a verdict of "Guilty." The prisoner was sentenced by the presiding judge to be hanged on Friday, the 22d of December, 1893. The defendant's counsel gave due notice of intention of the appeal, and obtained an order staying execution of the sentence until the termination of the appeal. The appellant filed 18 exceptions, which will now be considered.

First exception: Because his honor erred in excluding the answer of Dr. Swandale, the state's expert, who made the post mortem examination of the deceased, to the question, on cross-examination: "Now, in your opinion, how was the deceased standing towards the pistol when the ball entered?" In the case of State v. Merriman, 34 S.C. 16, 12 S.E. 619, Chief Justice McIver, speaking in behalf of the court, says: "The next question objected to was designed to elicit from the witness his opinion as to the position in which the gun must have been to produce the wounds found on the body. The court, after instructing the witness first to state the facts upon which he based his opinion, and then give his opinion, overruled the objection. The witness who was called on to make the post mortem seems to have made a very intelligent and careful examination, and proceeded to state the facts which such examination revealed, and the opinion which he had framed from such facts, to the effect that the muzzle of the gun must have been higher than the man who was shot. This, it seems to us, was clearly competent. See Seibles v. Blackwell, 1 McMul. 56; Jones v. Fuller, 19 S.C. 66." In the case of Hopt v. People, 120 U.S. 430, 7 S.Ct. 614, Mr. Justice Field, as the organ of the court, uses this language: "The deceased came to his death from a blow inflicted upon the left side of his head, which crushed his skull. A post mortem examination of the body was made by a physician who was allowed, against the objection of the defendant, to give his opinion as to the direction from which the blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opinion on that point. The ground of the objection was that the direction in which the blow was delivered was not a matter for the opinion of an expert, but one which should be left to the jury. The court overruled the objection, and the defendant excepted. The witness stated as his opinion that the blow was delivered from behind and above the head of the person struck, and from the left towards the right. *** The opinions of witnesses are constantly taken as the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observations, the result of which they give; and the confidence bestowed on their conclusions will depend upon the extent and completeness of their examination and the ability with which it is made. The court below, after observing that every person is competent to express an opinion upon a question of identity, as applied to persons in his family or to handwriting, and give his judgment in regard to the size, color, and weight of objects, and to make an estimate as to time and distance, cited a great number of cases illustrative of this doctrine. *** Upon the same principle the testimony of the physician as to the direction from which the blow was delivered was admissible. It was a conclusion of fact, which he would naturally draw from the examination of the wound. It was not 'expert testimony' in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses constantly draw from what they see and hear in the daily concerns of life." It thus appears that the presiding judge was in error in excluding the testimony. The witness was, however, afterwards permitted to give such testimony, and the appellant was therefore not prejudiced by the exclusion of the testimony in the first instance. Hopt v. People, 120 U.S. 430, 7 S.Ct. 618. On the grounds last mentioned, therefore, the first exception is overruled.

Second exception: Because his honor erred in excluding the statement made to Sullivan, the defendant, by one of his children, at the time the witness Robert Matthews delivered the note from deceased to Sullivan, on the morning of the killing, such conversation being a part of the res gestae of the delivery of the note. We fail to find in the arguments of appellant's counsel where any allusion is made to this exception, and we do not see how, in any point of view, the appellant has been prejudiced by the ruling of the presiding judge. See State v. Belcher, 13 S.C. 463; State v. Jackson, 32 S.C. 40-41, 10 S.E. 769; Greenl. Ev. § 108. The second exception is overruled.

Third exception: Because his honor erred in striking out the testimony of the witness M. L. Davis that deceased said to him some time before the killing, in speaking of the defendant, Sullivan, that he was not fit to live in a civilized community. This expression did not amount to a threat, nor did it necessarily show ill feeling on the part of the deceased towards the prisoner. Furthermore, the witness was permitted, immediately after the said testimony was excluded, to testify as to the feelings of the deceased...

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