State v. Bethune
| Decision Date | 30 March 1910 |
| Citation | 67 S.E. 466,86 S.C. 143 |
| Parties | STATE v. BETHUNE. |
| Court | South Carolina Supreme Court |
On Rehearing, June 2, 1910.
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.
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 defendant caught the horse between 10 and 11 o'clock, and drove it about over the country for several hours for his own pleasure, visiting and giving a ride to two girl friends. He made no inquiry as to who was owner. In the buggy was a satchel containing a pistol and a number of papers, chattel mortgages, etc. Defendant took the pistol from the satchel and put it in his pocket. Some of the papers were afterwards found on the road. Late that afternoon the deceased, accompanied by A. J. McFadden, was searching for the horse and buggy, and met defendant in possession, driving in the road accompanied by two girls. Deceased jumped out of the buggy he was in, and with a pistol in his hand stopped them, ordered the girls to get out, and ordering defendant to keep his seat, he got in the buggy with defendant. McFadden testified that deceased then told him to turn around, and as he was turning he heard deceased say "Oh!" and he looked and saw deceased falling backward from the buggy between the wheels, and saw defendant shoot at him as he was falling; that deceased's pistol fired while he was falling; that defendant jumped out of the buggy, and fled and McFadden fired at defendant as he ran off. Defendant and the girls testified substantially that deceased after ordering the girls out, looked in the back of the buggy, and asked defendant if he took anything out, and defendant answered, "No," that without further word the deceased ran around and fired at defendant, and that defendant fired back at deceased, and deceased fell away from the buggy. Defendant used the pistol of the deceased he had taken from the satchel. Defendant testified that the ball discharged from deceased's pistol struck the rim of his hat. Deceased had two wounds upon his head; one in the forehead about one inch wide, made with a blunt instrument cutting to the bone sufficient to stun or knock down, and the other a pistol wound above the left eye, penetrating the brain, and causing death soon after the difficulty.
Appellant presents 42 exceptions as grounds for reversal.
Exception 1. Error is alleged in forcing defendant to go to trial before the regular hour for the opening of the court. This is without merit, as on the previous day the court had announced an adjournment until 9 o'clock. This is a matter under the control of the trial court.
Exceptions 2 and 3. The motion to quash the indictment on the ground that it did not show on its face the name of the presiding judge, nor the names of the jurors by whom it was presented, was properly overruled. The indictment shows that it was the presentment of the grand jury of the county.
Exceptions 4, 5, 6, 7. Defendant was arraigned on the 9th day of June, and the day of trial set for Saturday, the 12th day of June, the last day of the term. His counsel, on the call of the case for trial, objected to going to trial, and moved to continue on the ground that his arraignment was so delayed that it was impossible to give the required notice of a motion for change of venue. The motion was properly overruled. The statute (Act Feb. 22, 1905, 24 St. at Large, p. 846), provides that four days' notice shall be given of application for change of venue, but further provides that the adverse party may waive the notice, and that the circuit court may shorten or extend the time for the hearing. In refusing the motion the court declared that no intimation had been given the court of any wish to move to change the venue, or to continue the cause until the morning appointed for trial; that he would have shortened the time of notice of motion to change venue if application had been made. Appellant was not denied any right under the statute, as he made no attempt to assert any It has been often ruled that refusal to continue overtime a cause is not reversible error.
Exception 8. When the juror Murray was examined on his voir dire, and after the usual questions had been propounded and answered, counsel for prisoner requested of the court permission to ask the juror "whether, in spite of the fact that the defendant at the bar is a negro, he would be influenced thereby in passing on the evidence." The court replied: The statute (section 2944, Civ. Code) provides: The court having permitted the juror to be questioned as to his relationship to the parties, as to his interest in the cause, as to whether he had formed or expressed any opinion, and as to whether he was sensible of any bias or prejudice therein, and being satisfied from the answer that the juror was not disqualified, there was no error in presenting the juror. "The presiding judge must determine on the character of the questions proposed, and when the examination shall cease." State v. Coleman, 8 S. C. 239; State v. Coleman, 20 S.C. 441; State v. Hayes, 69 S.C. 297, 48 S.E. 251. Moreover, appellant, having secured a jury without exhausting his peremptory challenges, is not in a position to claim that there was any error in presenting the juror. State v. Anderson, 26 S.C. 599, 2 S.E. 699; State v. Hayes, 69 S.C. 298, 48 S.E. 251.
Exception 9. When the state closed its testimony counsel for prisoner stated that he would like to have a little time to see some of the witnesses, to which the court replied: This is excepted to as showing undue haste, inconsistent with a fair and impartial trial. As the case was being tried on the last day of the term, and counsel was fighting at every possible point, and contesting every inch of ground, it is not surprising that the court should not feel bound to suspend the hearing to enable counsel to interview his witnesses, when the approaching recess would afford such an opportunity.
Exception 10. This exception complains that the court refused to allow the witness, W. T. Lesesne to be examined by defendant's counsel as to the character of the deceased as to treachery. The witness had testified that he knew nothing against the reputation of the deceased as being a dangerous, turbulent, or violent man. Defendant's counsel said to the court, "I understood your honor to rule that I can't ask him as to treachery?" to which, according to the record, the court replied: "Yes, sir; you can't ask him." Counsel then proceeded to ask, "What was his reputation?" when the witness answered, "I will have to recite special instances to tell." The court ruled, "You have a right to testify to what you heard about the man's character." Then the court permitted the witness to state in detail a difference between the witness and the deceased about a mule, when the court finally ruled that out as incompetent. The whole context shows that the court did not exclude testimony as to the deceased's reputation for treachery. This is further shown by the fact that on the examination of Sheriff Gamble defendant went fully into the matter.
Exception 11. This exception complains that the verdict was contrary to the weight of the evidence, in that the bullet taken from the head of the deceased weighed 112 1/2 grains, 37 grains less than a bullet taken in open court from one of the cartridges in the pistol fired by the defendant; the contention being that this proved that the bullet which killed deceased must have been fired either from the pistol in deceased's own hand, or from the pistol in the hands of McFadden. The circumstance...
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