State v. Gallman

• Decision Date: 27 February 1908
• Citation: 60 S.E. 682,79 S.C. 229
• Parties: STATE v. GALLMAN.
• Court: South Carolina Supreme Court

60 S.E. 682

79 S.C. 229

STATE v. GALLMAN.

Supreme Court of South Carolina

February 27, 1908

Appeal from General Sessions Circuit Court of Union County; Geo. E Prince, Judge.

James W. Gallman was convicted of manslaughter, and he appeals. Affirmed.

Townsend & Townsend, J. A. Sawyer, V. E. De Pass, and John Gary Evans for appellant.

Solicitor Sease, George Johnstone, and James Munro, for the State.

POPE C.J.

James W. Gallman was tried at a special term of the court of general sessions for Union county, in this state, for the murder of one Gilmore. On the 5th day of August, 1907, the jury found him guilty of manslaughter, and the presiding judge sentenced him to imprisonment for the term of 15 years in the state penitentiary. From this sentence the defendant has appealed upon 18 exceptions, of which we make the following dispositions:

The first and second will be considered together, and they are as follows: "(1) Because his honor erred in overruling the motion of the defendant to the effect that the court was without authority to try this case under the order of his excellency, Gov. Ansel, in that said order does not conform to the statute authorizing the Governor to order a special term of the court of general sessions; it being respectfully submitted that the Governor had no power or authority to order a special term of the court of general sessions, except in the manner and with the authority as prescribed by section 2744 et seq., 1 Code Laws 1902, and that, as his excellency's order does not conform to the requirements of said statute, the whole order was a nullity, and conferred no power upon the court to try this case. (2) Because his honor erred, after holding 'that the Governor cannot limit the court,' and that 'part of his order is a nullity,' in not therefore holding that the whole is a nullity; it being respectfully submitted that as to that part which limits the court to cases on the docket the whole order is a nullity, and it does not conform to the law conferring the authority upon the Governor to order a special term of court." The exceptions raise the questions in relation to the power of his excellency, the Governor, to call a special term of the sessions court under sections 2744 and 2745 of the Code of law of South Carolina. Now the text of those two sections is as follows:

"Sec. 2744. Upon the application to the Governor by the solicitor of any circuit, stating that the public interest demands an extra term of the court of general sessions in any county of the state, or upon the application of the majority of the members of the bar of any county, stating that the civil business demands an extra term of the court of common pleas, it shall be the duty of the Governor to appoint some man, learned in the law, and to be suggested by the chief justice of the Supreme Court of the state, to hold an extra term of said court or courts in said county, and notify the clerk of said court of said appointment.

"Sec. 2745. When notified of such appointment, the clerk of the said court shall notify the proper authorities, and the grand jury shall be summoned to attend, if it be a court of sessions, and a petit jury shall be drawn and summoned, if jury cases are to be tried, in the regular manner, for the purpose of said court, and as the same may be necessary, and the clerk shall notify said special judge of the time fixed for holding said special term of court"-the Governor having added the words in said section "to dispose of all cases on the criminal docket in said county."

It is claimed by the appellant that the addition of such words by the Governor rendered the order of such special term nugatory and of no effect. We remark at this time that the Constitution of this state has provided that there had to be at least two terms of the court of general sessions in each county every year at such times and places as the General Assembly may direct. Article 5, § 18, of the Constitution of 1895. Thus it will be seen that there is no limitation in the Constitution upon the power of the General Assembly to make provisions for the holding of the court of general sessions in each county, except there shall not be less than two regular terms. The General Assembly of this state in its wisdom has provided, as fixed in sections 2744 and 2745, for a special court of general sessions in any county of this state, when request is made therefor by the solicitor of the Governor. Upon such request of the solicitor the Governor may order a special or extra term of the court of general sessions for any county; and it is under this power in the Governor that the special sessions ordered in July 1907, was held. By the terms of those two sections (2744 and 2745) it was provided how such special court for Union should be held, and it seems that the provisions of those two sections were complied with by all the officers of the state, as provided in such sections. The appellant admits that, but claims that the Governor interferes with section 2744 by providing that such court of general sessions so to be holden should be "to dispose of all the cases on the criminal docket in the said county." Technically the court of general sessions is confined to the hearing of criminal cases in a county; so, therefore, the use by the Governor of such language when he confined the court to a distribution of all the criminal cases on the criminal docket was, to say the least, mere surplusage, for of course no civil cases would occur in the court of general sessions. The circuit judge, when his attention was called to the Governor's order, stated "that in his judgment the Governor could not so limit the court, and that part of his order was therefore a nullity." Thus it will be seen that it did not claim that there was any restriction in the Governor's order which affected the prisoner, who is here as appellant. The question, therefore, is purely academic, for the Governor bases his right in ordering such term of court on section 2744 of the Code of laws of this state. There could possibly be no mistake made by any one as to where the authority for this court emanated. No possible harm could result of this language used by the Governor, when he said "dispose of" all the cases on the criminal docket in the said county. These two grounds for exception are therefore overruled.

Exceptions 3, 6, and 9 were abandoned by the appellant.

Fourth exception: Because his honor erred in admitting in evidence, over defendant's objection, the alleged dying declaration of the deceased; it being respectfully submitted that the proper foundation for an admission of such had not been proven, in that it was not sufficiently shown that the defendant was fully conscious of his impending death. It seems to us that the circuit judge did not make the mistake here attempted to be pointed out. He was careful in his decision of the law on this point to recognize as controlling him the case of State v. Banister, 35 S.C. 295, 14 S.E. 678; State v. Jaggars, 58 S.C. 41, 36 S.E. 434; State v. Bradley, 34 S.C. 139, 13 S.E. 315. It is evident from a careful study of the record in this case that the circuit judge satisfied himself that the deceased, Gilmore, was conscious of the imminence of death at the time that his declaration was made, and that he was without hope of recovery, and the circumstances of the death was the subject of the declaration. It seems to us that the circuit judge made no mistake here, and this exception is therefore overruled.

Fifth exception: Because his honor erred in admitting the alleged dying declaration of the deceased, and in refusing the application of the defendant's attorney to first offer testimony as to the effect that deceased had been speaking to others, not in the presence of Dr. Southhard, and probably indicated he had not lost hope, and in his remarks in refusing such application, and especially in the remark that "I know you had much rather," etc. It seems to us that the circuit judge made no mistake in admitting the dying declaration, as we just held. It was his duty to satisfy himself that the deceased made his statement with a full appreciation of his approaching death, and that the testimony referred to by the appellant could not really detract from the recognition by the circuit judge of the deceased, fully realizing his approaching death, when he made the statement which the circuit judge admitted in the testimony. We, therefore, overrule the objection.

Exception 7 and 8 will be considered together, and are as follows: (7) Because his honor erred in excluding all testimony relating to accusations by Gilmore against Gallman of burning his barn, unless the testimony showed that the accusations were accompanied by threats by Gilmore against Gallman; the error being, as it is respectfully submitted, that since all the threats which Gilmore did make against Gallman were made in connection with these same accusations or similar ones, of burning his barn, the fact that Gilmore made accusations which were not coupled with a threat showed plainly the state of his mind towards Gallman. (8) Because his honor erred in frequently announcing in connection with his rulings that the burning had nothing to do with the case, and that accusations of burning afforded no excuse for killing a man; the error being that such announcements were not necessary in order to make said rulings intelligible, and this fact, coupled with the frequency of such announcements by his honor, were plain indications to the jury of his honor's opinion, and in violation of article 5, § 26, of the state Constitution. The duty of the circuit judge to keep within the proper limits the testimony relating to the conduct of the two parties, the assailant and the deceased, was a...