Plumley v. Gosnell
| Decision Date | 19 January 1935 |
| Docket Number | 13982. |
| Citation | 178 S.E. 261,175 S.C. 30 |
| Parties | PLUMLEY v. GOSNELL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; G. B Greene, Judge.
Action by Hendrix Plumley, by his guardian ad litem, Katie Plumley against Marion Gosnell. Judgment for plaintiff, and defendant appeals.
Affirmed with directions.
Cost of unnecessary printing in transcript printed on motion of plaintiff appellee will be taxed against plaintiff, as, for instance, references to former trial and unnecessary statements respecting complaint and evidence.
In personal injury action, cross-examination of plaintiff's witness respecting guilt of misdemeanors relating to liquor law, carrying pistol, and fighting held properly excluded as irrelevant and not affecting credibility, for witness is not required to be ready to defend or explain past acts, except conviction of infamous offense.
Morgan & Cothran, of Greenville, for appellant.
W. E Bowen, of Greenville, for respondent.
The sole question raised by the defendant, as appellant, is as to the admissibility on cross-examination of testimony to show that the witness had been convicted of several misdemeanors for the purpose of impeaching the veracity of the witness. Judge Greene refused to admit the testimony, and excluded the questions and answers from the consideration of the jury, after the court had first sent the jury out and had permitted the questions to be asked and answered in the absence of the jury. The defendant has filed four exceptions and states in argument that the appeal is taken because the presiding judge refused to allow certain questions and answers on cross-examination of the father of the plaintiff, who was W. D. Plumley, and was offered as a witness by the plaintiff.
The plaintiff also appeals from the order of the circuit judge settling the case for appeal and disallowing the printing of certain matters more fully set forth in the three exceptions filed by the plaintiff.
The record shows that the plaintiff recovered a verdict for $6,000, actual damages, for injuries sustained by Hendrix Plumley, minor, under fourteen years of age and who had his right arm injured in the saws of a gin owned by the defendant, causing the arm to be amputated, and who also suffered injuries to his face, arm, and chest. The recovery was had against the defendant who was charged with negligence in permitting the said minor to lie down on the floor and sleep in close proximity to the gin saws, with the nature and danger of which he was unacquainted, and putting in motion the machinery, when the defendant knew that the said minor was asleep, as aforesaid; in allowing, directing, and permitting said minor to be in and around said gin and to work with such dangerous machinery, and to become injured while he was in the defendant's charge. Judgment was duly entered upon this verdict.
The statement of facts also sets forth that the answer of the defendant denied the material allegations of the complaint; denied that he was the operator of the gin; alleged the negligence and contributory negligence of the plaintiff.
The order of Judge Greene settling the case for appeal expressly directs as follows: "Let it also appear that the testimony introduced by various witnesses for the plaintiff tended to establish the allegations of the complaint, and it might further be added that the testimony offered by the defendant tended to establish the allegations of the answer."
While W. D. Plumley, who is the father of Hendrix Plumley, was being examined in chief, as a witness for the plaintiff, he testified: "And I told him, I said, Mr. Gosnell, he has never been out anywhere about any machinery or any cotton gin or saw mill or nothing of that kind; and I had a first cousin killed with a saw mill and I warned him about keeping him away from these things and he said he would."
On cross-examination of this witness the defendant's counsel immediately attacked this testimony of the witness, who in answer to counsel's questions stated that he did not testify at the other trial of this case about warning Mr. Gosnell to keep this boy away from the gin and sawmill and "things like that," because they did not ask him. The witness then was asked whether on this Sunday, when he let Hendrix go up there, did he not tell Mr. Gosnell to take him and that the witness did not care "where in the hell he went." The witness denied this statement emphatically, thereupon counsel asked him if he had a little trouble with the law lately, which question was objected to, unless it goes to affect his credibility. The court then ruled that "you can bring out anything that tends to affect the credibility of the witness"; to which counsel for the defendant replied, "I do not know whether it is going to affect his credibility or not." After further argument, the court had the jury to retire for the purpose of allowing such questions to be asked only in the presence of the court. Thereupon, in the absence of the jury, defendant's counsel elicited from the witness that he was then serving a sentence of sixty days, imposed by the mayor of Greer, for carrying a gun, and that he had been accused of having a little liquor in a bottle, carrying a gun, and resisting an officer, "but they throwed away all of the charges except the gun." The witness also admitted that he served a sentence in Spartanburg of thirty days for fighting, and had made a six months' sentence for liquor in 1927. He admitted, in other words, to three separate misdemeanors. The plaintiff's attorneys asked him if he had ever been convicted of stealing, to which he replied, "No sir." The court then ruled:
The exceptions of the defendant-appellant charge error in excluding from the jury the foregoing testimony as to the three offenses and sentences thereon on the ground that the court erred in holding that the "things brought out" did not affect the credibility of the witness.
It will, therefore, be seen that the appeal in behalf of the defendant relates solely and entirely to the admissibility of testimony on cross-examination for the purpose of testing the credibility of the witness in regard to three misdemeanors relating to the liquor law, carrying of pistol, resisting an officer, and fighting. It will also be seen that the witness denied that he was sentenced for resisting an officer.
The appellant relies upon the case of State v. Minor, 165 S.C. 94, 162 S.E. 781, and does not cite any other authority or any other decision of this court. Before holding that the case cited is of such compelling force and effect as to definitely and finally decide the matter, now before this court, it will be necessary to look into the other decisions of this Court in order to reach a conclusion. In referring to the case of State v. Minor, appellant states in the argument, "that somewhat the reverse of that case is here presented but the principle of law is exactly the same." In that case the Supreme Court upheld the lower court in admitting the testimony on the ground that the solicitor could, in cross-examination of the appellant's witness, ask such questions as would enlighten the jury on the matter of the credibility of the witness as to the violation of the prohibition laws of the state. This court upheld the ruling of the circuit judge in admitting such testimony. In that case the appeal was taken on the ground that the question propounded tended to show the reputation of the defendant minor as a violator of the prohibition law, when she had not, in her defense, sought to show that her reputation was good. This court overruled this exception and then sustained the ruling of the circuit court under the facts of that case. At most, the case of State v. Minor holds that the admissibility of such testimony is within the discretion of the court, under the authority of such recent cases as Williamson v. Pike, 140 S.C. 383, 138 S.E. 831; State v. Petit, 144 S.C. 452, 142 S.E. 725, and that the admission of testimony in criminal cases is largely in the discretion of the trial judge and is not a ground for reversal, unless the admission of the testimony is prejudicial. The circuit court seemed to have that in mind in the Minor Case. The case of State v. Minor did not overrule any of the decisions of this state and did not expressly refer to any decision of this state to sustain the point raised.
On the other hand, as early as the year 1836, in the case of State v. Free, 1 McMul. 494, it was held that in the cross-examination of the witness, Petigru, by defendant's counsel, he was asked questions that proved that he had been guilty of taking two great coats, with a view to discredit him, and the Supreme Court held that this was clearly incompetent, although no objection was made to its competency; and there is little doubt that the presiding Judge would have rejected it, if any objection had been made to its competency. In the present case timely objection was made to the introduction of the testimony and it was excluded, which is fully in keeping with the rule set forth in State v. Wardlaw, 170...
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... ... Court: The Court rules that the testimony is not relevant or ... competent in this case, and the Court calls attention to the ... case of Plumley v. Gosnell. That case is found in 175 S.C ... 30, 178 S.E. 261 [263] ... ***** ... "Mr ... Want: The class ... ...
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