State v. Belton

• Decision Date: 16 February 1886
• Citation: 24 S.C. 185
• Parties: STATE v. BELTON.
• Court: South Carolina Supreme Court

24 S.C. 185

STATE v. BELTON.

Supreme Court of South Carolina.

February 16, 1886

1. A boy of twelve years who could repeat the Lord's prayer and had heard that the bad man caught those who lied, cursed & c., but had never heard of a God, or the devil, or of heaven or hell, or of the Bible, and had never heard, and had no idea, what became of the good or of the bad after death is not a competent witness. MR. JUSTICE MCGOWAN dissenting .

2. Declarations made by the deceased a few hours before his death, charging the prisoner with the infliction of the mortal wound, are admissible in evidence, his crying out at the time, " O Lord, I cannot stay here much longer," indicating that he had lost all hope of recovery, and looked for an immediate dissolution.

3. A dying declaration of the deceased, that the accused had passed him on the afternoon of the homicide on the road, was admissible in evidence.

4. A threat of the accused against " the Deans," without excepting any of the name, was admissible in evidence against him, the deceased being of that name and family, notwithstanding the proof showed the prisoner's quarrel had been wholly with other members of the family.

Before HUDSON, J., Kershaw, September, 1885.

The opinion sufficiently states the case.

Mr. W. D. Trantham , for appellant, cited Best Evid. , 62, 228; 1 Strob. , 160; 1 Green. Evid. , 368-9; 1 Sm. Lead. Cas. , 196; 9 Smedes & M. , 120; 55 Cal. 72; 24 Id. , 24; 9 Car. & P. , 418; 11 Cox Cr. Cas. , 250; 3 Car. & P. , 631; 2 Parker Cr. Rep. , 236; Whart. Hom. , 750; Whart. Cr. Evid. , 264, 278; 2 Jones , 360; 65 Mo. , 325.

Mr. J. D. Kennedy , contra.

OPINION

MR CHIEF JUSTICE SIMPSON.

The defendant, David Belton, was convicted of the murder of Aaron Dean at the September term, 1885, of the Court of General Sessions for Kershaw County, his honor, Judge Hudson, presiding. From the judgment, he has appealed upon four exceptions, raising questions as to the competency and admissibility of certain testimony introduced by the prosecution. The first is as to the competency of a witness, Jim Miller. This witness was a boy about twelve years of age. He seems to have been a boy of, at least, ordinary intelligence, and although he had learned from his mother, since dead, the Lord's prayer, when he was five years old, and, according to his statement, had repeated it every day since, yet he said he had never heard of a God or the devil, or of heaven or hell, or of the Bible, and that " he had never heard, and had no idea, what became of the good or of the bad after death." He said, however, that he had heard it said that the bad man caught those who lied, cursed, & c., and upon being examined, he repeated the Lord's prayer. The presiding judge, in his report of the case as to this matter, states as follows: " As for the colored youth, he manifested an unusual sense of the efficacy of prayer, and the future torments by the bad man awaiting those who speak falsely, though his answers as to a God, heaven, & c., were singular. The court gave him instructions as to the meaning and obligation of an oath, and then permitted him to be sworn." His admission is assigned as error in the first exception.

The declarations of the deceased, made a short time before his death, as to who fired the fatal shot, and stating that the defendant had passed them on the road some three miles from the place where he was shot, were admitted as dying declarations. This is excepted to in the second and third exceptions (1st), because the evidence did not show that the deceased had given up all hope of life, and (2d), as to the statement of his having been passed by the accused on the road, that this could not be allowed under the law of dying declarations.

The fourth exception alleges error, in that one Everett Kirkland was permitted to testify that he had heard the defendant say " that if those Deans did not stay off his lands and let him alone, he would put a load of shot into some of them; that he had carried them before a trial justice, had posted his land, & c.," the appellant claiming this to be error, because that while it was true that the father and brother of the deceased had been in difficulties with the accused on account of trespass upon his land, yet that the deceased was in no way involved, he being a young man, absent from the place most of the time, and on friendly terms with the accused.

Now, let us recur to the first exception. A leading case upon the question of law raised therein in England is the case of Omichund v. Barker , reported in 1 Willes , 538, and more fully in 1 Atk. , 21, and found in 1 Smith Lead. Cas. , 195. In this case, upon a full and most interesting discussion of the whole question of the competency of a witness as affected by his religious creed, it was made to rest upon the question of his belief in the existence of a God, and rewards and punishments by him, either in this world or in the future state, " the court stating that one who believes a future state, and that he shall be punished in the next world as well as in this if he does not swear the truth, should be entitled to the greater credit, as he is plainly under the strongest obligation." In most of the States of the Union, it has been held that the competency of a witness is not affected by a disbelief in a future state, and that his testimony should be admitted if he believes in the existence of a God and in divine punishment of crime. See Hunscom v. Hunscom , 15 Mass. 184; Brock v. Milligan , 10 Ohio , 121; Blocker v. Burness , 2 Ala. , 354; United States v. Kennedy , 3 McLean , 175; Bennett v. State , 1 Swan. , 411. In our own State, the case of Jones v. Harris , 1 Strob. , 160, lays down very much the same doctrine, holding that a belief in God and his providence is sufficient to establish the competency of a witness, objected to on account of defective religious beliefs.

Now let the competency of the witness, Jas. Miller, be tested by the rule of Jones v. Harris, supra , which is the law of South Carolina on this subject. Did he believe in a God and his providence? He stated to the court that he had never heard of a God, or of a heaven, or of a hell, or of a devil. How, then, could he have a belief in the existence and providence of a Great Being, of whom, up to the time that he was offered as a witness, he had never heard even? Such a belief, under such circumstances, seems impossible. In the absence of such belief, he was incompetent under the authorities cited. The fact that he had learned the...