State v. Bigham

• Decision Date: 26 January 1922
• Docket Number: (No. 10827.)
• Citation: 112 S.E. 332
• Parties: STATE . v. BIGHAM.
• Court: South Carolina Supreme Court

112 S.E. 332

STATE .

v.BIGHAM.

(No. 10827.)

Supreme Court of South Carolina.

Jan. 26, 1922.

Appeal from General Sessions Circuit Court of Florence County; R. W. Memminger, Judge.

Edmund D. Bigham was convicted of murder in the first degree, and he appeals. Affirmed.

The exceptions of defendant were as follows:

(1) That the presiding judge erred in overruling appellant's motion for a change of venue, in that the affidavits submitted by the accused in support of said motion plainly and manifestly showed that the accused could not, at the time he was called to trial, secure a fair and impartial trial of his cause in the said county of Florence.

(2) That the presiding judge erred in overruling appellant's motion for a change of venue in that the affidavits submitted by the state were not sufficient in legal form, statement, or effect—the said affidavits not stating facts or grounds upon which the alleged beliefs and opinions of affiants were founded—to sustain the conclusion of the presiding judge that the defendant could obtain a fair and impartial trial in Florence county, and in so holding he was plainly and manifestly in error.

(3) That the presiding judge erred in overruling the appellant's motion for a change of venue, in that upon the whole showing made, upon said motion, he did deprive the defendant, as a citizen of this state and of the United States, of his right to a fair and impartial trial, as guaranteed to him under article 1, § 18, and article 6, § 2, of the Constitution of South Carolina, and section 3832 of the Civil Code of South Carolina.

(4) That the presiding judge erred in overruling the appellant's motion for a change of venue, in that, by his refusal to grant such motion and order the place of trial changed to some other county within the same judicial circuit, he did fail to exercise a sound judicial discretion, and was plainly and manifestly in error.

(5) That the presiding judge erred and did fail to exercise a sound judicial discretion in overruling defendant's motions for a continuance, in that he thereby deprived appellant of a reasonable time within which to prepare his defense.

(6) That the presiding judge erred and did fail to exercise a sound judicial discretion in overruling defendant's motions for a continuance, in that he thereby deprived him of his right to be fully heard in his defense, in contravention of the provisions of article 1, § 18, of the Constitution of South Carolina.

(7) That the presiding judge erred and did fail to exercise a sound judicial discretion in overruling defendant's motions for a continuance, in that he was thereby deprived of the privilege of using the testimony taken at the coroner's inquest to contradict the witnesses for the state, Dr W. H. Boston and others.

(8) That the presiding judge erred in admitting, over the objection of appellant's counsel, the testimony of the witness Mrs. Kirton, as to an alleged conversation between herself and the deceased, Smiley Bigham, the appellant not being present; such testimony being as follows:

"Q. You saw him Tuesday before the homicide? A. Yes, sir

"Q. Were his actions normal that day; did he have a conversation with you? A. Yes, sir.

"Q. What was the conversation? (Objected to by defendant. Objection overruled. Exception noted.) A. He 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 land if he will behave himself. He is talking about killing us all, but I am not afraid.' "

Said testimony being hearsay and highly prejudicial to the rights of accused.

(9) That the presiding judge erred in refusing to charge appellant's first request to charge, to wit: "That the defendant was, as matter of law, at the beginning of this case, as innocent of the crime charged against him as anymember of the jury, and that he continues so to be until this moment, unless the jury believe that the unimpeached evidence presented from the stand establishes his guilt beyond all reasonable doubt." It being respectfully submitted that the said request embodied a correct principle of law which was applicable to the case.

(10) That the presiding judge erred in refusing to declare the law. as required of him by article 5, § 26, of the Constitution of South Carolina, in that he failed to charge the jury that the accused then on trial was presumed to be innocent, which presumption remained with him at every stage of the trial, and entitled him to an acquittal, until removed by evidence adduced at the trial sufficient to convince the jury beyond a reasonable doubt of his guilt, which is a correct principle of law and was directly applicable to the case.

(11) That the presiding judge erred in refusing to declare the law as required of him by article 5, § 26, of the Constitution of the state, in that he failed to charge the law relating to the defense of an alibi, the issues involved therein fairly arising upon the record in the case and the law relating thereto being applicable to the case.

(12) That the presiding judge erred in charging the jury as follows, to wit; "Now. that malice, either express or implied, must be aforethought to come up to the requirements of the law. It does not mean that that aforethought must necessarily have existed for a great length of time. That is not necessary to make malice aforethought. It may be conceived in the man's mind, or it may be implied by the character of the conduct described to you in a moment of time. So that if a killing is shown to have been done, if, as in this case, the defendant is shown, beyond a reasonable doubt, to have killed Smiley Bigham with malice aforethought, express or implied, he is guilty of murder; otherwise not." In that by the use of the words, "if, as in this case, ' he virtually instructed the jury to find the defendant guilty of murder.

(13) That the presiding judge erred in charging the jury as follows, to wit: "Now, that malice, either express or implied, must be aforethought to come up to the requirements of the law. It does not mean that the aforethought must necessarily have existed for a great length of time. That is not necessary to make malice aforethought It may be conceived in the man's mind, or it may be implied by the character of conduct described to you in a moment of time. So that if a killing is shown to have been done, if, as in this case, the defendant is shown, beyond a reasonable doubt, to have killed Smiley Bigham with malice aforethought, express or implied, he is guilty of murder; otherwise not" —in referring to and charging upon the disputed facts in the case, namely, that the appellant killed the deceased with malice aforethought, or that he killed him at all.

(14) That the presiding judge erred in charging the jury as follows: "Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide. Now, is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself—took his own life—then you cannot convict the defendant in this case, because it must be shown beyond a reasonable doubt that Smiley Bigham did not commit suicide and that this defendant did kill him, before you can bring in a verdict against him." In that he thereby, in effect, told the jury that it was incumbent upon the defendant to explain the death of Smiley Bigham, beyond a reasonable doubt; otherwise, he must be convicted.

(15) That the presiding judge erred in charging the jury: "Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide. Now. is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself—took his own life—then you cannot convict the defendant in this case, because it must be shown beyond a reasonable doubt that Smiley Bigham did not commit suicide and that this defendant did kill him, before you can bring in a verdict against him." In that, by using the language, to wit, "Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide, " he deprived the appellant of the right to rest his case wholly upon his plea of not guilty, and imposed upon him the burden of otherwise accounting for the death of the deceased.

(16) That the presiding judge erred in charging the jury: "Now, the defendant claims in this case, not only that he is not guilty of the offense, but that the death of Smiley Bigham was the result of an act of his own; that he committed suicide. Now, is there a reasonable doubt upon that point? If you find that there is a reasonable doubt that Smiley Bigham killed himself—took his own life—then you cannot convict the defendant in this case, because it must be shown beyond a reasonable doubt that Smiley Bigham did not commit suicide and that this defendant did kill him before you can bring in a verdict against him." In that he virtually instructed the jury unless the appellant did show that Smiley Bigham did commit suicide beyond a reasonable doubt, they might conclude that the appellant killed him.

(17) That the presiding judge erred in stating to counsel for accused: "If Mr. King cannot conduct his argument in a more orderly manner, the court will require him to forthwith take his seat, and other counsel will be appointed to conduct the case for defendant." In that the language of counsel to which the presiding judge referred was a fair, proper, and legitimate discussion of the evidence adduced in said cause, and such remark from the court directed to counsel in the presence of the jury was highly prejudicial to the rights of appellant.

(18) That the presiding judge erred in stating to counsel for appelant as in...