58 S.E. 974 (S.C. 1907), State v. Emerson

Citation:58 S.E. 974, 78 S.C. 83
Opinion Judge:JONES, J.
Party Name:STATE v. EMERSON.
Attorney:Bonham & Watkins and Cothran, Dean & Cothran, for appellant. J. E. Boggs, Sol., Martin & Earle, G. C. Sullivan, and Paget & Watkins, for the State.
Case Date:September 06, 1907
Court:Supreme Court of South Carolina
 
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Page 974

58 S.E. 974 (S.C. 1907)

78 S.C. 83

STATE

v.

EMERSON.

Supreme Court of South Carolina

September 6, 1907

Appeal from General Sessions Circuit Court of Anderson County; Gary, Judge.

J. A. Emerson was convicted of murder, and appeals. Affirmed.

Bonham & Watkins and Cothran, Dean & Cothran, for appellant.

J. E. Boggs, Sol., Martin & Earle, G. C. Sullivan, and Paget & Watkins, for the State.

JONES, J.

[78 S.C. 86] The appellant was indicted for the murder of Thomas F. Drake, and, upon being convicted with a recommendation to mercy, was sentenced to life imprisonment, from which appeal is taken upon numerous exceptions. The homicide occurred on the night of August 12, 1906, in the home of the deceased in Anderson county. Mrs. Belle Bailey, a married daughter of the deceased, about 31 years old, was living in the home of her father, with her child, Mary, about 13 years old, and her brother, Ralph Drake. The defendant, a sergeant of the county chain gang, left camp some 14 miles from Drake's for the purpose of visiting Belle Bailey in her bedroom. Hitching his mule in the woods near the house, he went to the open window of the bedroom, and, discovering a knot in the curtain, the signal agreed upon between them, he entered through the window. He placed his coat and pants upon the floor and his pistol on top in reach from the side of the bed and got in bed with Belle Bailey. The deceased occupied a room just across the hall and nearly opposite Belle Bailey's room. Deceased got up during the night and set a lighted lamp in the hall on a table standing almost opposite Belle Bailey's room door, which stood slightly ajar. Belle said to her paramour: "There is a light, Allen." He then got out of bed and started towards the door. She testified that her father pushed the door open before she reached it; that she asked him what he wanted, and he said, "I want to hear a fuss"; that he had a pistol in his hand; that she heard Allen say, "Don't shoot"; that her father immediately fired towards Allen; that Allen shot his pistol; that her father immediately started to shoot again, when Allen shot the second time and her father fell away from the room door into the hall. The deceased was shot through the heart and died immediately. The defendant testified that when Belle punched him in the side and said, "There is a light, Allen," he raised up in bed and saw the door open and Drake with a pistol in hand; that he said to Drake, "Don't you shoot me," and bent over in bed [78 S.C. 87]to get his pistol, and while in that position Drake fired, the ball grazing and cutting the skin on his back; that he (defendant) then fired into the ceiling above to ward him off and get a chance to get out of the room; that Drake was about to fire again when defendant fired as quick as he could and Drake disappeared; that he then left the room without his clothes and went to where his mule was hitched; and that Belle brought the clothes to him there. The defendant and Belle went off together to Anderson, the defendant voluntarily surrendered to the sheriff, and Belle went to Atlanta.

Page 975

The defendant set up the plea of self-defense, and the real struggle in the case was on the point whether defendant was without fault in bringing on the difficulty. On this issue defendant sought to show the cause of Belle Bailey's marriage with William Bailey, some 13 years before the homicide; that her father knew of her unchaste character and her previous relations with the deceased; that he was estranged from his daughter by reason of her conduct; that he never spoke to her or entered her bedroom; that defendant knew of this relation, and therefore did not expect to encounter the father on his visit to the daughter.

1. The first exception assigns error in the court's refusal to allow defendant's counsel to ask the witness Ralph Drake: "Do you know the immediate cause of her marriage at that time? Why was it she got married just at that time?" The object was to show that the marriage was forced because Belle was with child by William Bailey. This was properly excluded as too remote and as not throwing any light upon the homicide occurring 13 years afterwards, and there being nothing to connect the circumstances of that marriage with the defendant or the homicide. If the purpose of the testimony was preliminary to showing an estrangement between Belle Bailey and her father because of her unchaste conduct and the improbability of the defendant encountering the father in her bedroom, the ruling was harmless, as it was an undisputed fact in the case established by the state's witness Ralph Drake, at folios 25, 26, [78 S.C. 88] that the relation between Belle and her father was not friendly, that he had not spoken to her for 10 or 12 years, and that he never entered her room.

2. The basis of the third exception is the alleged refusal of the court to allow the witness Belle Bailey to answer the question, "Did you make it known to him (defendant) that your father did not communicate at all with you?" The case, at folio 74, shows the following in the examination of Belle Bailey: "Q. You need not state what you said to Allen Emerson, but I will ask you this question, whether or not you made it known to him that your father, never, under any circumstances, came into your room? A. I have. Q. You told him that? A. Yes, sir." After this, when the question referred to in the exception was asked, objection was made by the solicitor, and the court sustained the objection. This cannot constitute reversible error, if it be conceded that the testimony was competent, for the question, in so far as it relates to whether Drake ever entered her room, had previously been answered without objection and remained as testimony in the case. Moreover, the defendant, at folio 149, testified that he knew Drake never had any communication with Belle and never visited her room, and that he had no reason to expect to meet Drake in that room. It is not reversible error to exclude testimony as to matters already in evidence and undisputed. The fact that Drake did not speak to his daughter or visit her room was proven by the state, as already remarked, and was not a matter of dispute.

3. The second and fourth exceptions charge error in refusing to allow the following questions to be propounded to the witness Belle Bailey: "Do you know whether or not your father was aware of this relation between yourself and Allen Emerson?" "I wish you would state to the jury whether or not your father had knowledge of the fact that there had been illicit relations between you and Allen Emerson, the defendant." The witness Belle [78 S.C. 89] Bailey had just previously testified that 10 years before she gave birth to a child, and that the defendant was its father, but there was at that stage in the case no testimony of any other improper relation between the parties up to the night of the homicide. So that we are bound to assume that the purpose of the question was to ascertain whether the deceased knew of the illicit relation which had existed between his daughter and the defendant 10 years previously. The circuit court ruled that the testimony might be relevant and admissible if Drake, the father, had on this occasion killed the defendant and was on trial for the same, but that it was not relevant to the issue in this case. The appellant contends that the father's knowledge of the unchaste relation between defendant and his daughter would be a material and relevant circumstance in determining whether the father's attack upon defendant was in revenge for past wrong, and therefore malicious, or was the result of heat and passion aroused by suddenly discovering the adulterer in his house in the bed with his daughter; that, if Drake would have been guilty of murder had he killed defendant, the defendant had the right to defend...

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