State v. Abercrombie

• Decision Date: 13 January 1925
• Docket Number: (No.11662.)
• Citation: 126 S.E. 142
• Court: South Carolina Supreme Court
• Parties: STATE v. ABERCROMBIE.

126 S.E. 142

STATE

v.ABERCROMBIE.

(No.11662.)

Supreme Court of South Carolina.

Jan. 13, 1925.

Appeal from General Sessions Circuit Court of Greenville County; E. C. Dennis, Judge.

J. T. Abercrombie was convicted of manslaughter, and he appeals. Judgment reversed, and new trial granted.

Exceptions 1, 2, 3, and 4 are as follows:

Exception 1: The Court erred in permitting the witness Mrs. Ann Williams, to testify, as follows:

"About half an hour by sun Mr. Abercrombie got Colonel Sims to come up there. I live right on the road and Mr. Abercrombie came by and blowed the whistle and commenced hollering in front of my door. He went on in the house and turned around and came back and hollered again and cursed me. He went on down to the house after he cursed me to a s. o. b. and Mr. Sims came up to my house and Abercrombie walked up singing a little song. I did not say anything to him. He went down and commenced talking to Mr. Sims. I went back and said 'My husband is not here, you ought not to be cursing here.' Then they broke and came in the house, and said they were going to search the house and get him and kill him. I told them not to come in the house. They drawed the pistol on me and dared me to pick up the shotgun. Asked me if I was going to use it. I said, 'No, sir. What could I do? You already got your pistol on me.' They started out and I followed them to the door. I said, 'You all come down here and slander me this way and hunt for my husband. I am going right now and take you with a warrant.' And Mr. Sims cussed me to a s. o. b. and said, 'I am sorry you think you have got that little enough sense to think you can punish us coming in here. We have a right here.' I says, 'You have no right here.' Mr. Abercrombie said, 'This is my place.' I said, 'This is my yard and house while I live here.' And they went on out then."

Specification: This was permitting the witness to give a detailed statement of a difficulty between her and the defendant. The fact that the defendant had cursed this witness could not be used against him under a charge of murder for killing her husband.

Exception 2: The court erred in permitting the witness Mrs. Ann Williams to testify over the objection of the defendant that she went to another magistrate in her endeavor to get a warrant for the defendant.

Specification: Whether this witness got a warrant for defendant was no evidence against him under the charge before the court, and related to a difficulty between defendant and a third person.

Exception 3: The court erred in permitting the witness Mrs. Ann Williams to testify over objection of the defendant as follows:

"Abercrombie said he would be there to the gin. He would be afraid he would take it like he had accused him of taking 5 gallons of his liquor."

Specification: This was not in the nature of a threat, and was merely an attempt to attack defendant's reputation as to handling liquor.

Exception 4: The court erred in permitting the witness James Williams to testify over objection of the defendant, on the ground that the witness was incompetent.

Specification: Witness demonstrated that he was mentally incompetent, and also that he did not believe in God and His providence.

The court's examination of witness James Williams follows:

"Q. What is your name, son? A. James.

"Q. James what? A. James Williams.

"Q. How old are you? A. Eight.

"Q. Eight years old? A. Eight years old.

"Q. Well, do you know what they told youjust now about telling the truth when you put your hand on that Book? Do you know what that was for? A. No, sir.

"Q. Well, do you know what will happen to you if you don't tell the truth? Do you know whether you ought to tell the truth or not? A. Yes, sir.

"Q. Huh? A. Yes, sir.

"Q. Well, what do you think will happen to you if you don't tell the truth? Do you know anything that will happen to you if you don't tell the truth? A. No, sir.

"Q. Turn around here. Did you say Yes or No? A. No, sir.

"Q. You don't know? If you get up here now and not tell the truth you don't know what they will do with you? A. No, sir.

"Q. Do you know about God? A. No, sir.

"Q. Don't go to Sunday School? A. I go some Sundays.

"Q. They tell you about God there? Do you understand about God? A. No, sir.

"Q. Do you understand about telling a lie and telling the truth? Do you know the difference between telling a lie and telling the truth? A. No, sir.

"Q. What ought you to tell? A. Tell the truth.

"Q. Tell the truth. Why should you tell the truth? Is that better than telling a lie? A. Yes, sir.

"Q. Do you know anything about telling a lie? Do you know what will happen to you? A. No, sir.

"Q. Do you know whether it is a sin or not to tell a lie? A. No, sir.

"Q. Is it a sin to tell a lie or not? A. Yes, sir.

"Q. It is a sin? A. Yes, sir."

Dean, Cothran & Wycbe, of Greenville, for appellant.

D. W. Smoak, Sol., and Bonham, Price & Poag, all of Greenville, for the State.

WATTS, J. The defendant was tried and convicted of manslaughter before Judge Dennis and a jury at the January term of court, 1024, at Greenville, for the killing of Ed Williams, and sentenced to 10 years in the state penitentiary. He has appealed, and by 21 exceptions alleges error and seeks reversal.

Exceptions 1, 2, and 3 must be sustained.

Mrs. Williams should not have been allowed to give the complete details of a transaction that occurred at her house about four weeks before the killing. That was a transaction between the defendant and a third person, and the witness should have been permitted only to testify as to threats made by the defendant against the deceased. It was prejudicial to the defendant that she should be allowed to testily to the abuse of her made by the defendant, and that he cursed and abused her in the absence of her husband.

It is not allowed to give the details of any previous difficulty between the defendant and the deceased, much less to give the details of a transaction between the defendant and a third person.

In the case of State v. Williams, 125 S. C. 385, 118 S. E. 784, the court says:

"Evidence was allowed, over objection, as to the origin of the difficulty. The fact that there had been a previous difficulty was proper, the details were inadmissible, and their introduction error."

The rule in such cases is thus stated in the case of State v. Evans, 112 S. C. 43, 99 S. E. 751, where the defendant was given a new trial on the ground that the court allowed the state to give the details and causes of a previous difficulty:

"The evidence as to the previous difficulty was competent only to show the animus of the parties, and thus aid the jury in reaching a conclusion as to who was probably the aggressor, and what demeanor each party had reason to expect from the other when they met and the fatal difficulty occurred. The general details of the previous trouble were properly excluded."

In State v. Adams, 68 S. C. 421, 47 S. E. 676, the Supreme Court says:

" 'Therefore, previous threats and quarrels are permitted, not as a defense for killing a man, not as a defense to a homicide, but to show the attitude of the parties.' No enlightened tribunal could receive such testimony on any other ground than that stated in this quotation; and we think it was not only proper, but the imperative duty of the circuit judge, to charge it should have no other effect."

The judge made no charge in this case to save the defendant from the prejudicial error in admitting this testimony. From these cases it will be seen that the error here is clear. No detail of the transaction was excluded by the presiding judge.

The case of State v. Gregory, 127 S. C. 87, 120 S. E. 499, states the correct rule to be that evidence of conduct immediately preceding the homicide is admissible to show the frame of mind at the time of the homicide, but things which happened four weeks prior thereto would not be...