State v. Bethune

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES
• Citation: 67 S.E. 466,86 S.C. 143
• Decision Date: 30 March 1910
• Parties: STATE v. BETHUNE.

67 S.E. 466
86 S.C. 143

STATE
v.
BETHUNE.

Supreme Court of South Carolina.

March 30, 1910.

On Rehearing, June 2, 1910.

1. Criminal Law (§ 648^*)—Time for Sessions—Discretion of Trial Court.

Defendant in a criminal prosecution cannot complain that he was required to go to trial before the regular hour for opening court, where the previous day the court announced an adjournment until 9 o'clock the next morning; it being a matter under the control of the trial court.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1510; Dec. Dig. § 648.*]

2. Indictment and Information (§ 25*)—Description of Grand Jury.

It is sufficient for an indictment to show that it was presented by the grand jurors of the county without giving the name of the presiding judge, or the names of the jurors by whom it was presented.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 92, 101, 111; Dec. Dig. § 25.*]

3. Criminal Law ($ 589*)—Continuance.

Act Feb. 22, 1905 (24 St. at Large, p. 846), provides that four days' notice shall be given of application for change of venue, that the adverse party may waive the notice, and the court may shorten or extend time for the hearing. Held that, where defendant was arraigned on the 9th day of the month, and the trial set for the 12th, the last day of the term, there is no error in denying the motion, then made for the first time, for a continuance, on the ground that the arraignment was so delayed that it was impossible to give the required notice for a change of venue.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1315; Dec. Dig. § 589.*]

4. Jury (§ 131*)—Competency—Examination.

Ciy. Code 1902, § 2944, provides for the examination of jurors as to 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 parties objecting to the juror may introduce any other competent evidence in support of the objection." Held proper to refuse to allow defendant, in a criminal prosecution, to ask a juror "whether, in spite of the fact that defendant is a negro, he would be influenced thereby in passing on the evidence."

[Ed. Note.—For other cases, see Jury, Cent. Dig. § 581; Dec. Dig. § 131.*]

5. Criminal Law (§ 1166 1/2*) — Appeal — Harmless Error—Rulings as to Jury.

Defendant, having secured a jury without exhausting his peremptory challenges, is not in a position to allege error in presenting a juror.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3115; Dec. Dig. § 1166 1/2.*]

[67 S.E. 467]

6. Criminal Law (§ 649^2-*)—Trial—Conduct or Trial.

When the state closed its testimony, defendant's counsel stated that he would like to have a little time to see some of the witnesses, to which the court replied: "Suppose you see them at the recess; we are going to be pressed for time." Held not to show undue haste, inconsistent with a fair and impartial trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1512, 1515; Dec. Dig. § 649.*]

7. Criminal Law (§ 696*)—Trial—Rulings as to Evidence—Reputation of Deceased.

A witness had testified that he knew nothing against the reputation of deceased as being a dangerous, turbulent, or violent man. Defendant's counsel stated to the court, "I understand your honor to rule that I can't ask him as to treachery, " to which the court replied: "Yes, sir; you can't ask him." Counsel then asked witness, "What was his reputation?" and witness answered, "I will have to recite special instances to tell." The court ruled, "You have a right to testify as to what you heard about the man's character." The court then permitted the witness to state details of differences between the witness and deceased, when the court ruled that out as incompetent. Held, that the court did not exclude testimony as to deceased's reputation for treachery.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 696.*]

8. Criminal LAW (§ 432*)—Evidence—Manufacturer's Catalogue.

In a prosecution for homicide, it was proper to exclude from the evidence a paper purporting to be a catalogue of a manufacturer of guns, sought to be introduced to prove that there is a 32 caliber center fire pistol cartridge that is a little heavier than the bullet taken from the head of deceased, as such catalogue has no status in court as original evidence.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1021; Dec. Dig. § 432.*]

9. Criminal Law (§ 834*)—Trial—Requests for Instructions.

On defendant's counsel presenting a number of requested instructions, it was proper for the court to state, "I am going to take the liberty of trying to comprehend the substance of what you have stated in your requests in my general charge, and not give every one of them, " and no error can be imputed unless defendant shows that some material and applicable principle of law requested was not given in the general instruction.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2014; Dec. Dig. § 834.*]

10. Homicide (§ 300*)—Trial—Instructions —Self-Defense.

The statement in an instruction that "It is unlawful to kill" is not subject to the objection of excluding self-defense, where the words were almost immediately followed by, "If defendant killed deceased in self-defense, you should acquit him."

[Ed. Note.—For other cases, see Homicide, Cent Dig. §§ 616, 627; Dec. Dig. § 300.*]

11. Criminal Law (§ 755 1/2*) — Trial — Instructions on Evidence.

The statement by the court, in instructing that "What I am going to say to you is going to be said of the witnesses and the facts proven in this case, and not hypothetical cases, but as to the testimony brought out in the case, " is not of itself an instruction on the facts.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1731; Dec. Dig. § 755 1/2.*]

12. Criminal Law (§ 701*)—Trial—Instructions on Evidence.

Where all the testimony showed that deceased was killed by defendant, and not by another person present, an instruction that, "If defendant killed deceased in self-defense, you should acquit him" is not an instruction on the facts, as intimating as proven a matter in issue as to whether deceased was shot by defendant or such other person.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1757: Dec. Dig. § 761;* Homicide, Cent. Dig. § 582.]

13. Homicide (§ 300*)—Instructions—Self-Defense.

In a prosecution for homicide, it appeared that deceased's horse, with a buggy, ran away; that when found it was in defendant's possession, and the difficulty resulting in the homicide followed. The court instructed that: "I do not tell you here, because it is not the law, that if defendant wrongfully took away deceased's buggy, and deceased thereafter overtook him and set upon him unlawfully to beat and kill him, the fact that defendant wrongfully took away his buggy does not deprive him of the plea of self-defense." Held, that the instruction is not subject to the objection that it deprived defendant of the principle at law that the commission by defendant of a wrongful act, not the cause of the difficulty, would not deprive him of the plea of self-defense.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 628; Dec. Dig. § 300.*]

14. Criminal Law (§ 761*)—Trial—Instructions—Assumption of Fact.

Neither is such instruction subject to the objection of assuming that there was a wrongful taking of the buggy by defendant.

[Ed. Note.—For other cases, see Criminal Law. Dec. Dig. § 761.*]

15. Homicide (§ 45*)—Degrees—Provocation —Effect of Opprobrious Words.

No words, however opprobrious, will constitute that legal provocation which is necessary to reduce a killing from murder to manslaughter.

[Ed. Note.--For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. § 45.*]

16. Homicide (§ 300*)—Trial—Instructions —Self-Defense.

An instruction as to manslaughter that, "If deceased assaulted and struck the defendant, it would reduce the killing to manslaughter" is not objectionable as excluding the plea of self-defense, where the law of self-defense was fully given in another portion of the instruction.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 627; Dec. Dig. § 300.*]

17. Criminal Law (§ 797*)—Instructions-Power of Recommendation to Mercy.

The court instructed that the Legislature gave the jury the right to recommend a person to the mercy of the court, and did not limit such power; that, "If the circumstances of the case satisfy the jury that the elements in the case reduce it from that bold and awful murder which merits death, then the jury may recommend the party to mercy." Held that, though it would have been better if the court had simply called the jurors' attention to the terms of the statute, and left the matter with them without further remark, the remarks made do not require a reversal, as the discretion of the jury does not seem to have been wrongly influenced.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1936; Dec. Dig. § 797.*]

18. Criminal Law (§ 761*)—Trial—Instructions on Facts.

An instruction that, "If the circumstances of the case satisfy the jury that the elements

[67 S.E. 468]

in the case reduce it from that bold and awful murder which merits death, then the jury may recommend the party to mercy" is not an instruction on facts, as the matter of recommending to mercy presupposes a finding of murder.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1750; Dec. Dig. § 761;^3-* Homicide, CeDt. Dig. § 582.]

Appeal from General Sessions Circuit Court of Clarendon County; Geo. W. Gage, Judge.

Willie Bethune was convicted of murder, and appeals. Affirmed.

A. A. Manning, for appellant.

P. H. Stoll, Sol., and L. D. Jennings, for the State.

JONES, C. J. The defendant was found guilty of the murder of G. B. Mims, and was sentenced to be hanged on July 30, 1909.

On Sunday morning February 21, 1909, the deceased's horse with buggy got loose and ran off down the road. The...