Appeal
from general sessions circuit court of Fairfield county; W
H. Wallace, Judge.
Jasper
Atkinson and John Atkinson were convicted of murder, and
sentenced to be hanged, and they appeal. Affirmed.
The
following is the indictment: "Indictment. State of South
Carolina, County of Fairfield. At a court of general sessions
begun and holden in and for the county of Fairfield, in the
state of South Carolina, at Winnsborough, in the county and
state aforesaid, in the state of South Carolina aforesaid
that is to say, upon their oaths, present that Jasper
Atkinson, on the 28th day of January, in the year of our Lord
1893, with force and arms, at Winnsborough, in the county of
Fairfield and state aforesaid, in and upon one John H. Clamp
with a certain loaded shotgun, then and there, feloniously,
willfully, and of his malice aforethought, did make an
assault, and that the said Jasper Atkinson, him, the said
John H. Clamp, with the loaded shotgun aforesaid, then and
there, feloniously, willfully, and of his malice
aforethought, did shoot, strike, penetrate, and wound, giving
to the said John H. Clamp, thereby, in and upon the right
side of the head of him, the said John H. Clamp, one mortal
wound, of which said mortal wound the said John H. Clamp then
and there instantly died. And so the jurors aforesaid, upon
their oath aforesaid, do say that the said Jasper Atkinson,
him, the said John H. Clamp, in manner and form and by the
means aforesaid, feloniously, willfully, and of his malice
aforethought, did kill and murder. And the jurors aforesaid,
upon their oath aforesaid, do further present that John
Atkinson, late of the county and state aforesaid, before the
said felony and murder was committed in manner and form
aforesaid, to wit, on the 28th day of the same month of
January aforesaid, with force and arms, at Winnsborough, in
the county and state aforesaid, feloniously, willfully, and
of his malice aforethought, did incite, move, procure, and
hire, counsel, and command, the said Jasper Atkinson the said
felony and murder in manner and form aforesaid to do and
commit. Against the form of the act of the general assembly
of the said state in such case made and provided, and against
the peace and dignity of the same state aforesaid. M. J.
Hough, Solicitor."
The
exceptions of the defendants are as follows: "(1)
Because his honor erred in sending the defendants back to the
jail pending the consideration of the motion to quash the
indictment; the defendants being thereby deprived of a
constitutional right to be fully heard by themselves or their
counsel, or by both, as they should elect. (2) Because his
honor erred in refusing the defendants' motion to quash
the indictment. (3) Because his honor erred in overruling the
demurrer entered by the defendants to the said indictment.
(4) Because his honor erred in that he should have held that
the indictment, as to the defendant Jasper Atkinson, is
fatally defective, in that it does not conclude, 'Against
the peace and dignity of the state.' (5) Because his
honor erred in that he should have held that the indictment
as to the defendant John Atkinson, is fatally defective, in
that it does not fully, fairly, plainly, substantially, and
formally describe the offense for which he was held to
answer. (6) Because his honor erred in admitting in evidence
at the trial of this cause papers which had been illegally
and wrongfully taken from the room of the defendant John
Atkinson without a search warrant, and without authority of
law, the rights of the said defendant under the constitution
of this state, and under the constitution of the United
States, being thereby violated. (7) Because his honor erred
in admitting incompetent testimony against the defendants,
over the objection of the said defendants duly taken. (8)
Because his honor erred in admitting testimony against the
defendants which was procured by compelling the said
defendants to give evidence against themselves. (9) Because
his honor erred in admitting testimony that the tracks
leading from the place where the body of the deceased was
found to the house of the deceased were the tracks of the
defendant Jasper Atkinson, after it had been made to appear
that the said defendant was forced to place his foot in the
said tracks. (10) Because his honor erred in charging the
jury as follows: 'By way of illustration, these papers
that were picked up there were circumstances. They have been
proved before you. It has been argued to you by counsel what
they point out, and you are to say what these papers prove;
and if they, taken with all the other facts in the case,
satisfy you beyond a reasonable doubt, it is good testimony,
and sufficient to support
a verdict.' (11) Because his honor erred in charging the
jury as follows: 'It has also been suggested that I
charge you that the circumstantial evidence must be
consistent with the guilt of the defendants, and inconsistent
with any other reasonable hypothesis. Of course, that is
established law, and that is a question which a jury must
determine for itself,"--the defendants imputing error to
so much of this as remits a question of law to the jury, and
leaves the jury to abide by the rule or not, at discretion.
McIVER
C.J.
The
defendants were charged in the same indictment--Jasper
Atkinson as principal, and John Atkinson as accessory before
the fact--with the murder of one John H. Clamp, and the case
came on for trial before his honor, Judge Wallace, and a
jury. It is stated in the case, as prepared for argument
here, that: "The defendants, through their counsel, at
the proper time, before the jury was sworn, and before
pleading to the indictment, entered a demurrer thereto, and
moved to quash the same upon the following grounds: First,
that, as to the defendant Jasper Atkinson, the indictment
does not conclude, 'Against the peace and dignity of the
state.' Secondly, as to the defendant John Atkinson, that
the indictment does not state facts sufficient to constitute
the offense, inasmuch as it does not fully, fairly, and
formally describe the offense with which he is charged."
Pending the hearing and consideration of this motion, the
defendants were remanded to the jail; and, when the hearing
and consideration of the motion were concluded, his honor
directed that the prisoners be brought into court, and
thereupon announced that the motion be overruled, and that
the trial should proceed. During the progress of the trial,
testimony was introduced on the part of the state, tending to
show that tracks were found at the scene of the homicide, and
going in the direction of the house at which the defendants
were staying on the night when the deceased was shot and
killed, which tracks witnesses undertook to identify as the
tracks of the defendant Jasper Atkinson by reason of the fact
that, when he placed his foot in one of the tracks, it fitted
the same. But when it was made to appear that this defendant
had been required by the officer in charge to put his foot in
the tracks discovered, and to make other tracks by running,
which could be compared with the others originally found, the
circuit judge, on the motion of defendants' counsel,
ordered the testimony as to the tracks, obtained by
compulsion, to be stricken out, adding these words: "I
will say to the jury now that no defendant can be compelled
to make evidence against himself, just as he cannot be
compelled to testify as to his guilt. If the defendant did
anything voluntarily, that is competent.' Testimony was
also offered on the part of the state tending to show that
certain pieces of paper, parts of a newspaper, which were
found in the room occupied by the defendant John Atkinson by
some of the witnesses, corresponded with the paper picked up
at the scene of the homicide, supposed, from the stains upon
it of blood and brains, to have been the wadding of the gun
with which the fatal shot was fired, inasmuch as the printing
on these papers indicated that they were taken from the same
newspaper article. After much other testimony, which need not
be adverted to here, the case was submitted to the jury,
after hearing the argument of counsel and the charge of the
judge, who found both of the defendants guilty, and the
defendants appealed upon the several grounds set out in the
record, which need not be stated here in totidem verbis, but
which should be so set out in the report of this case.
The
first exception raises the question whether there was error
in depriving the defendants of the alleged right to be
present at the hearing of the motion to quash the indictment.
The right of the accused to be present during every stage of
his trial for a capital felony has long been settled, and is
still fully...
