State v. Bing

• Decision Date: 19 March 1921
• Docket Number: 10589.
• Citation: 106 S.E. 573,115 S.C. 506
• Parties: STATE v. BING ET AL.
• Court: South Carolina Supreme Court

106 S.E. 573

115 S.C. 506

STATE v. BING ET AL.

No. 10589.

Supreme Court of South Carolina

March 19, 1921

Appeal from General Sessions Circuit Court of Hampton County; I. W Bowman, Judge.

Tom Henry Bing and others were convicted of breaking into a store and stealing money therefrom, and they appeal. New trial granted.

T Hagood Gooding, of Hampton, for appellants.

George Warren, Sol., of Hampton, for the State.

GARY C.J.

The following statement appears in the record:

"There were two indictments for the alleged breaking into a store in this county and stealing money therefrom. One indictment was against the defendants Tom Henry Bing Franklin Gordon, and Horton Gordon, and the other against the defendant Joe Williams; both indictments charging burglary.

The state relied principally upon alleged confessions of the defendants, and the defendants pleaded that the alleged confessions were obtained under duress.

Counsel for defendants made a motion for a directed verdict upon the ground that it was conclusively shown that the alleged confessions were made by defendants under the fear of losing their lives, induced by severe whippings administered by arresting parties, and other circumstances showing duress. Motion was refused.

At the conclusion of the testimony the solicitor stated that he would not ask for a conviction of burglary, but only of grand larceny. The jury found the defendants, with the exception of Franklin Gordon, guilty of grand larceny. Thereupon counsel for defendants gave notice of a motion for a new trial, upon the grounds that the testimony showed that the alleged confessions were made under duress, and upon the further ground that the defendant Joe Williams was allowed to answer, in response to the solicitor's cross-examination, that he had been on the chain gang before. The motion for a new trial was refused."

The defendants, with the exception of Franklin Gordon, were sentenced by the court, and appealed upon exceptions, the first of which is as follows:

"Because his honor, the presiding judge, erred in refusing the request of counsel for the defendants that each juror be asked upon presentation what part of the county said juror was from, and holding and deciding that this was the preliminary work of counsel for the defense and not a matter to be asked on the trial of the cause; whereas, it is respectfully submitted that such question on the part of the court was proper at this time to fully protect the interests of the defendants, inasmuch as the testimony shows that there was strong feeling in the neighborhood of the alleged robbery against the alleged robbers, and citizens from this part of the county were highly incensed over same, and the refusal of his honor to put this question at the request of the defendants was prejudicial to their rights and their constitutional guaranty of a fair and impartial trial."

The question presented by this exception thus arose:

"Mr. Gooding: Before we proceed with the case, I would like to ask the court to ask each juror what part of the county he is from.

The Court: What say you to that, Mr. Solicitor?

Mr. Warren: That is not a proper question here. Counsel ought to find that out ahead of time.

The Court: I think so. That is preliminary work of counsel, and is not a matter to be asked here, on the trial of this case."

The admissibility of testimony must, necessarily, be left in large measure to the discretion of the presiding judge; and it has not been made to appear that it was erroneously exercised.

The second exception is as follows:

"Because his honor, the presiding judge, erred in allowing the state, upon cross-examination of the witness Joe Williams, to question said witness as to an alleged former conviction for housebreaking over the objection of the defendant's counsel; whereas, it is respectfully submitted that such questions were irrelevant and incompetent, in that the defendant had not put his good character in issue, and same could not be attacked by the state, and such questions and the testimony adduced therefrom could have no other effect than to prejudice the jury against the said defendant."

On the cross-examination of the defendant Joe Williams, the record shows that the following took place:

"Q. You have been in court before? A. Yes, sir.

Q. What did they have you up for?

(Mr. Gooding: That has nothing to do with this case, and I object to it, if the court pleases. Mr. Warren: It has something to do with the credibility of the witness. The Court: He may test his credibility, Mr. Gooding.)

Mr. Warren (continuing): They had me up for housebreaking, and the jury convicted me, and I went on the chain gang."

Section 64 of the Criminal Code of 1902 is as follows:

"In the trial of all criminal cases, the defendant shall be allowed to testify (if he desires to do so, and not otherwise), as to the facts and circumstances of the case."

If he testifies in his own behalf, he may be cross-examined as to such facts...