70 S.E. 402 (S.C. 1911), State v. Duncan

Citation:70 S.E. 402, 88 S.C. 217
Opinion Judge:GARY, A. J.
Party Name:STATE v. DUNCAN. [D1]
Attorney:B. H. Matthews and Paul M. Macmillan, for appellant. John H. Peurifoy, Sol., for the State.
Case Date:February 27, 1911
Court:Supreme Court of South Carolina
 
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Page 402

70 S.E. 402 (S.C. 1911)

88 S.C. 217

STATE

v.

DUNCAN. [D1]

Supreme Court of South Carolina

February 27, 1911

Appeal from General Sessions Circuit Court of Charleston County; R. C. Watts, Judge.

Daniel Duncan was convicted of murder, and he appeals. Affirmed and remanded.

B. H. Matthews and Paul M. Macmillan, for appellant. John H. Peurifoy, Sol., for the State.

GARY, A. J.

This is an appeal from the sentence of death, imposed upon the defendant, Daniel Duncan, for the alleged murder of Max Lubelsky.

As stated by the appellant's attorneys, the practical question presented by the exceptions is whether there was error on the part of his honor, the presiding judge, in overruling the objection to the admissibility of the testimony which tended to show that the defendant made an assault upon Mrs.

Page 403

Max Lubelsky, on the ground that such testimony was irrelevant. This question arose as follows, during the examination of Mrs. Max Lubelsky, a witness for the state: "A. As soon as I came back, I buried my husband. I didn't care any more for myself. I tried to keep up for the little boy; so I opened the store, and, as soon as I opened the store, that fellow used to come in all the time. Q. Are you sure he is the one? A. I am as sure as I am sitting here that that is the devil. Q. Now, Mrs. Lubelsky, you remember the 8th of July? A. Yes, sir; he opened my head. I have a mark right here. Q. What did he hit you with? A. While I was fixing up a bundle, and waiting for the $8, and when I was waiting for the change, I was talking about my trouble, my husband was so young-- (objected to as irrelevant.) The Court: She can tell that she saw him that day; but I don't think she can go into all that. Q. Now, Mrs. Lubelsky, what became of this man after he struck you? A. While I was waiting for the $8, I lifted my eyes up and he struck me. Q. Where did he go after he struck you? A. As soon as I got struck, I don't know what happened to me. Q. Where did he go? A. I didn't see anything. I wished he would kill me. Q. Where did he go? A. I tried to run to the front, and he opened his eyes so big I thought he was going to tear me in pieces, and I got to the front, and he got off. Counsel for the defendant: I object to all the testimony in regard to the 8th of July, on the ground that it is irrelevant. The Court: Gentlemen, she has a right to tell whether she...

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