Sims v. Jones

• Court: South Carolina Supreme Court
• Writing for the Court: GARY, J. POPE, J.
• Citation: Sims v. Jones, 43 S.C. 91, 20 S.E. 905 (S.C. 1895)
• Decision Date: 31 January 1895
• Parties: SIMS et al. v. JONES et al.

20 S.E. 905

43 S.C. 91

SIMS et al. v. JONES et al.

Supreme Court of South Carolina

January 31, 1895

Appeal from common pleas circuit court of Union county; Ernest Gary Judge.

Action by George T. Sims and E. L. Sims, partners, against W. T Jones and Ida Jones, administrators. From a judgment for plaintiffs, defendants appeal. Affirmed.

Munn & Munn, for appellants.

J. G McKissick, S.W. Melton, O. L. Schumpert, C. C. Culp, and T. B. Butler, for respondents.

GARY J.

This action is upon an alleged promissory note of the defendants' testator, Tyrrel J. Jones, deceased. The defense is forgery and consequent want of consideration. They jury found for the plaintiffs upon the trial on circuit. The defendants appeal to this court on numerous exceptions.

The first three exceptions will be discussed together, and are as follows: "And now come the defendants, and except to the rulings of his honor, over the objections of defendants, alleging error in the following particulars: (1) In holding that the juror J. G. Rice was a competent juror. (2) In holding that the juror P. P. Hamilton was not a competent juror. (3) In holding that the juror J. K. Young was not a competent juror." These jurors were sworn upon their voir dire. Their examination will be set for the in the report of this case. Section 2403, Rev. St. 1893, provides: "The court shall, on motion of either party in suit examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause he shall be placed aside as to the trial of that cause and another shall be called." In the case of State v. Dodson, 16 S.C. 453, the court uses this language: "The question is whether the circuit judge erred in allowing certain jurors to be presented to the prisoners, who, when examined on their voir dire, stated that they had formed an opinion in reference to the case from what they had heard or seen in the newspapers, which, however, would not in the least influence their minds as jurors; that they were not sensible of any bias or prejudice whatever, either for or against the prisoners, and would be governed by the evidence adduced in the case. The statute, after providing that the court shall, upon the motion of either party to the cause, examine any person called as a juror upon his voir dire, declares that: 'If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called.' Gen. St. p. 523, c. 111 § 25. This would seem to vest the power of determining the question of fact, as to whether the juror was indifferent, in the hands of the court called upon to try the case, and we do not see how this court could undertake to review such determination. But even were this not so, we see no error in the course pursued by the circuit judge. Any other course would have the effect of excluding from the jury box, in any case of such magnitude or public interest as would be likely to attract attention, the very class of persons who would be best qualified to occupy that position, for in cases of that character it would be difficult to find persons of ordinary intelligence who had not received some impressions in regard to a case from what they had heard or read in the newspapers." S. P. State v. Williams, 31 S.C. 257, 9 S.E. 853; State v. Merriman, 34 S.C. 17, 12 S.E. 619; State v. Summers, 36 S.C. 479, 15 S.E. 369; State v. Haines, 36 S.C. 504, 15 S.E. 555; State v. McIntosh, 39 S.C. 97, 17 S.E. 446. In the case of State v. Merriman, 34 S. C., on page 34, 12 S.E. 619, the court says: "The objection that the judge erred in rejecting the juror Fletcher, because of his relationship to the accused within the degrees stated in the record, cannot be sustained. We are not aware of any statute fixing the degrees either of consanguinity or affinity within which a juror is disqualified; and it must therefore be left to the circuit judge to determine whether the fact the juror's father and the grandfather of the accused were brothers was such a relationship as would be likely to render the juror not indifferent in this case." These exceptions are overruled.

The fourth exception complains of error on the part of the presiding judge as follows: "In admitting the testimony of the witness Charles P. Sims that liens were given by witness' mother to T. J. Jones during the years 1872 to 1879, inclusive." The testimony of the witness was introduced for the purpose simply of showing that liens, were given as therein stated, but no attempt was made to prove the contents of the liens. This comes within the principle laid down by the court in the case of Lowry v. Pinson, 2 Bailey, 328, as follows: "But where the writing relates to a collateral circumstances, and an inference favorable to the party arises out of the fact of its execution and existence, and not out of its particular contents, parol evidence is admissible. Of this the case of Spiers v. Willison, 4 Cranch, 398, is an instance. There parol evidence of the existence of a deed of gift was admitted, to show the nature of the possession that accompanied the deed. The allegation of the plaintiff here is that Issac J. Pinson conveyed the land in dispute to the defendant, for the purpose of defrauding her; and the object of the evidence that he about the same time made a voluntary bill of sale to the defendant and David Madden of all his negroes--the bulk of his remaining property--was to show the fraudulent intention by way of deduction, not from the particular provisions of the bill of sale, but from the fact of its execution without consideration. The evidence was therefore properly admitted." This exception is overruled.

The fifth, sixth, seventh, and eighth exceptions complain of error on the part of the trial judge as follows: "(5) In ruling that the defendants could not introduce documentary evidence until after plaintiffs had closed their case in chief, and in excluding deed of settlement after proof of same by plaintiff's witness Charles P. Sims on cross-examination. (6) In ruling that the defendants could not introduce documentary evidence until after the plaintiffs had closed their testimony in chief, and in excluding the mortgage deed of S.W. Sims to T. J. Jones after proof of same, by plaintiffs' witness Charles P. Sims, on cross-examination. (7) In refusing to allow the defendants to introduce documentary evidence after proof of same by plaintiffs' witness because plaintiffs had not closed their testimony in chief. (8) In refusing to permit the defendants to introduce in evidence four letters written by the witness Charles P. Sims after proof of same because plaintiffs had not closed their testimony in chief." The testimony mentioned in these exceptions was offered by the defendants when they came to their defense, and all admitted except the mortgage of S.W. Sims to T. J. Jones, mentioned in the sixth exception, which was refused on account of irrelevancy, and to which, it seems, no exception has been taken. The said mortgage is set out at length in the case but the letters are not. The rule for the introduction of testimony is thus stated in the case of Willoughby v. Railroad Co., 32 S.C. 427, 428, 11 S.E. 339, to wit: "The first exception imputes error to the circuit judge in refusing to allow the written agreement, which the plaintiff in her cross-examination admitted to be the contract under which she leased the rails, to be then read in evidence. It seems that, while the plaintiff was under cross-examination, the written agreement was shown to her, and she admitted 'her signature to the contract set up in the answer, and that it was the contract under which she leased the rails.' Now, if this contract had been verbal instead of written, we do not see how defendant's counsel could have been prevented from asking the plaintiff what were the terms of such contract; and it seems to us that asking the privilege of reading the terms which had been put down in writing was in effect the same thing as asking what were the terms of a parol contract which lay at the foundation of the whole controversy. But as we think this question was conclusively determined by the recent case of Owens v. Gentry, 30 S.C. 490, 9 S.E. 525, we need not discuss it further. There the sheriff was sued for certain property, which he had seized under a warrant to enforce an agricultural lien, and he justified his seizure, and asserted his right to the property under such warrant; and it was there held that the defendant had the right, in the cross-examination of one of plaintiff's witnesses, to prove the warrant, and put the same in evidence at that time, because, however it may be in the United States courts and in the courts of some of the other states, the rule here is that the defendant may, if he can, make out his whole defense in the cross-examination of plaintiff's witnesses. In the present case the defendant was sued for a trespass, and undertook to justify, or to rather deny, any trespass, because of a license contained in the very agreement under which plaintiff obtained the property about which the controversy arose. It is urged, however, that, the agreement being signed by other parties as well as by plaintiff, it could not properly be offered in evidence until the signature of such other parties had been proved; but...