State v. Bigham

• Decision Date: 01 February 1926
• Docket Number: 11913.
• Parties: STATE v. BIGHAM.
• Court: South Carolina Supreme Court

131 S.E. 603

133 S.C. 491

STATE v. BIGHAM.

No. 11913.

Supreme Court of South Carolina

February 1, 1926

Appeal from General Sessions Circuit Court of Horry County; H. F Rice, Judge.

Edmund D. Bigham was convicted of murder, and he appeals. Reversed and new trial granted.

Watts J., dissenting in part.

A. L. King, of Florence, and Mendel L. Smith, of Camden, for appellant.

L. M. Gasque, Sol., of Marion, and P. H. Arrowsmith, of Florence, for the State.

WATTS J.

The defendant was indicted for the murder of his brother, L. Smiley Bigham. The homicide occurred in Florence county on the 15th day of January, 1921. At the same time Mrs. M. M. Bigham, the mother, Mrs. Margie Black, the sister, and her two adopted sons, John and Leo McCracken, were also slain. The defendant was arrested on January 20, 1921, on warrants charging him with the murder of all these parties. At the March term, 1921, of the sessions court of Florence county, he was indicted by the grand jury for their murder, and at the same term of court went to trial under the bill charging him with the murder of his brother, Smiley Bigham.

Upon that trial he was convicted and sentenced to suffer death by electrocution. He then applied to be released on habeas corpus, alleging as his ground the sentence to be unlawful, as the court had held over beyond Saturday of the week allotted. This petition was denied. He then prosecuted his appeal to this court for a general review, and the conviction was sustained. State v. Bigham, 119 S.C. 368, 112 S.E. 332. He then applied for a new trial on after-discovered evidence, which was refused, and the refusal was affirmed on appeal. State v. Bigham, 123 S.C. 411, 117 S.E. 57. He then applied to this court for leave to move on circuit for a new trial on after-discovered evidence and upon the further ground that he had been the victim of a "mob trial." Leave was granted, and his honor, Circuit Judge John S. Wilson, granted the motion. A change of venue was had on the motion of the defendant, unopposed by the state, and the case was retried at Conway, in Horry county, before his honor, Circuit Judge H. F. Rice and a jury. He was again convicted, again sentenced to suffer death by electrocution, and again appealed.

One of the group of exceptions complains that it was error to allow Mrs. Ola Kirton to testify (over objection) for the state on her direct examination, to an alleged conversation between L. Smiley Bigham, the deceased, and herself, the defendant not being present, on Tuesday before the homicide on the following Saturday, relating to a hostile statement alleged to have been made by the defendant to the deceased at some previous time, not designated. The testimony was purely hearsay; it did not come within the exceptions to the universally sanctioned rule excluding such testimony; it was completely at variance with the decided cases in this state on the subject, and highly prejudicial.

The witness was allowed to testify to this conversation, both at this trial and the former trial. State v. Bigham, 119 S.C. 371, 112 S.E. 332. The admission of this testimony was made the ground of the eighth exception in the appeal to this court from the judgment pronounced against him at that trial. Appellant's counsel, Mr. Smith, has this to say in his points and authorities, which embodies what was done in that appeal and the decision of the court (his statement is correct):

"In disposing of the exception contrary to the contention of the defendant, the court, Mr. Justice Gary delivering the opinion, held, in substance, (1) that the question propounded was not objectionable, and a motion should have been made to strike out the answer if it were regarded as inadmissible and not responsive to the ruling of the court (citing State v. Mills, 79 S.C. 187 [[[[[, and State v. Bing, 115 S.C. 506 ); and (2) that no ground of objection to the testimony was stated (State v. Bigham, 119 S.C. page 396 [112 S.E. 332]). When this opinion was rendered the court was composed of only four members. Mr. Justice Cothran concurred in the opinion, and the lamented Justice Fraser filed a separate concurring opinion. Mr. Justice Watts did not participate in the decision on account of illness. In discussing the exception, Mr. Justice Fraser declared:

'As to the statements made by the deceased: A witness was permitted to say the deceased said: "He is kind of cutting up some with us; he has had his share, but I am going to give him a piece of the land if he will behave himself. He is talking about killing us all, but I am not afraid of him." Ordinarily that is incompetent, clearly so. Much depends on the surroundings. The theory of the defendant was that Smiley was a crazy man. The only way ordinary people can judge of a man's sanity is from what he says and does. The defendant, on the cross-examination, had been allowed to prove Smiley's actings and sayings, and I cannot say it was reversible error to allow the state to follow the defendant's lead on the redirect examination.' State v. Bigham, 119 S.C. 400 .

It will therefore be noted that the direct question of the competency of this testimony was not determined by a majority of the court; and such testimony was sustained by Mr. Justice Fraser upon the ground that he could not say that its admission 'was reversible error,' although ordinarily clearly incompetent, when the state on the redirect examination only followed the defendant's lead on the cross-examination."

The question is now presented squarely to the court, whether the testimony was competent or not. Specific objection was made that it was not competent, that the defendant was not present at the time the alleged conversation between the witness and deceased was had, and such statements were not a part of the res gestæ or a dying declaration. In no view of the case was it admissible, according to my view; it was clearly incompetent and highly prejudicial.

It is different at this trial and the former trial. At this time objection was made promptly, and a motion to strike out the answer was made and refused by the court. Even if the question of sanity was at issue, the State did not bring itself within State v. Driggers, 84 S.C. 530, 66 S.E. 1042, 137 Am. St. Rep. 855, 19 Ann. Cas. 1166. Here the witness was allowed to detail the conversation with the deceased on Monday before the homicides on Saturday; the defendant not being present, showing threats and a hostile attitude on the part of the defendant, and the alleged conversation not being a dying declaration or a part of the res gestæ. The alleged conversation was a statement made by the deceased when he was not even under an oath.

The statements of the deceased, and declarations made by him, are not competent evidence either for or against the accused, unless made in his presence or unless they are admitted in evidence as part of res gestæ or dying declarations or proved by the defendant as threats against him. 12 Cyc. 429; Nettles v. Harrison, 2 McCord, 230; State v. Wyse, 32 S.C. 45, 10 S.E. 612; State v. Taylor, 56 S.C. 360, 34 S.E. 939; State v. Allen, 56 S.C. 495, 35 S.E. 204; State v. Goodwin, 127 S.C. 107, 120 S.E. 496. The admission of such testimony was contrary to the decisions in this state.

In the case of the State v. Goodwin; supra, the court, Mr. Justice Cothran delivering the opinion, recognizes the long-established rule in declaring:

"The testimony of the sheriff and that of the magistrate as to the declarations of the deceased complaining of the conduct of the defendant and applying for a peace warrant were clearly inadmissible as hearsay."

In the Goodwin Case the defense was an alibi, just as in this case. If the contention (not a defense, as no such affirmative burden rested on the accused) had been that Carter, the deceased, had killed himself through an insane impulse, would this fact have converted the inadmissible and hearsay statements of the deceased complaining of the conduct of the defendant into competent evidence? Such a contention is preposterous.

The principle announced in the case of the State v. Underwood, 127 S.C. 1, 120 S.E. 719, leads more strongly to a similar conclusion. In that case, a prosecution for murder, one witness was allowed to testify on cross-examination that another witness told her that the defendant had made a threat to kill the deceased. Such testimony was held incompetent and prejudicial.

The exceptions raising this question are sustained.

The second group of exceptions assign error in that there was a highly prejudicial abuse of the right of cross-examination by counsel, who assisted the state in the prosecution, and a failure on the part of the trial judge to require the said attorney to desist in asking questions on cross-examination of the defendant, which were in utter disregard of his honor's ruling, and in not giving to the defendant, in violation of his sacred, constitutional rights, any protection or security whatever against an obviously unfair and unlawfully conducted cross-examination, persistently pursued in utter disregard and defiance of the rulings of the court. The following took place:

"Q. Wasn't that man killed by driving a nail in his ear and being shot in the head? A. Dr. Finklea can answer that question; I can't.

Q. Do you refuse? A. No; I don't know.

Q. Didn't you drive that nail in that man's head? Didn't you kill that man by driving that nail in his head? A. No; I didn't. (Objected to as improper and irrelevant. Objection was sustained.)

Mr. Smith: I would like for your honor to instruct the jury to disregard that question.

The Court: I have sustained your objection, and I instruct the jury that that means, gentlemen of the jury, that that matter is not before you, and of course you are not to

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