State v. Barwick
| Decision Date | 05 July 1911 |
| Parties | STATE v. BARWICK. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Sumter County; Thos S. Sease, Judge.
"To be officially reported."
Robert M. Barwick was convicted of manslaughter, and he appeals. Affirmed.
H. C Haynsworth, for appellant. P. H. Stoll, Sol., for the State.
The defendant in October, 1908, was policeman of the town of Pinewood in Clarendon county, and on arrival of the Saturday night train from Sumter was opening a way through the crowd for some lady passengers, when Thomas Singleton, according to defendant's version, declared he would stand back for no damn man, whereupon defendant seized Singleton to arrest him for cursing and refusing to open the way. Singleton broke loose and ran, and the defendant pursued, firing his pistol towards him several times. The deceased, Sam Bracy, was standing in line of the firing and was struck by a bullet which gave him a mortal wound, of which he died some days later in a hospital in Sumter, S.C. The defendant was indicted for the murder of Bracy, and was convicted of manslaughter with recommendation of mercy.
The testimony for the state was to the effect that deceased was struck by a bullet from the pistol of defendant, but the defendant testified to the effect that Singleton while running away, or some one in the direction he was running, shot at defendant, that defendant did not shoot until after this firing, and the suggestion was that deceased may have been shot by Singleton. On cross-examination of defendant, who had testified in his own behalf, the solicitor was allowed to interrogate defendant as to his statements under oath before the mayor's court. Defendant was asked if he did not state before the mayor: "I did not see Singleton with a pistol, but he shot back at this place, also he shot before he got to the man that was shot." "If Singleton shot at all he shot before he got to the man that was shot." The effect of this statement, if true, would be to show that if Singleton shot in such a situation he could not have hit deceased. The defendant denied that he made such statement, and no effort was made to contradict by any written statement or otherwise.
The first, second, and third exceptions allege that it was error to admit this testimony, which in effect was compelling defendant to give testimony against himself in violation of article 1, § 17, of the Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself. Appellant relies upon State v Senn, 32 S.C. 396, 11 S.E. 292, to sustain these exceptions, but we do not think the case is controlling. The question in that case was whether the coroner could testify as to statements made at the inquest by one then examined as a witness, who was afterwards indicted and was on trial. Justice McIver was of the opinion that parol evidence of such statement was not admissible when the statement was in writing, and, further, that such admissions were not free and voluntary when made by a witness under summons to testify. Justice McGowan held the testimony admissible. While Chief Justice Simpson appears to have concurred generally in the opinion of Justice McIver, he nevertheless indorsed on the opinion of Justice McGowan his reasons for not concurring therein, and these reasons contained no objection to the view of Justice McGowan on this point. The question at bar is different. Section 64 of the Criminal Code of 1902, provides: [2] "In the trial of all criminal cases the defendant shall be allowed to testify (if he desires to do so, and not otherwise) as to the facts and circumstances of the case;" and section 65 provides that no person shall be required to answer any question tending to criminate himself. When a defendant voluntarily elects to be a witness in his own behalf he thereby assumes the position of any ordinary witness, and is therefore subject to cross-examination to test his accuracy, veracity, or credibility, subject to the control of the trial court, and subject to his right to decline to answer any question tending to criminate him. State v. Williamson. 65 S.C. 245, 43 S.E. 671; State v. Andrews, 73 S.C. 260, 53...
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