State v. Bolin

• Decision Date: 08 July 1935
• Docket Number: 14105.
• Citation: 180 S.E. 809,177 S.C. 57
• Parties: STATE v. BOLIN.
• Court: South Carolina Supreme Court

180 S.E. 809

177 S.C. 57

STATE v. BOLIN.

No. 14105.

Supreme Court of South Carolina

July 8, 1935

Appeal from General Sessions Circuit Court of Cherokee County; E. C Dennis, Judge.

E. B Bolin was convicted of manslaughter, and he appeals.

Reversed and remanded.

P. D Barron, of Union, and L. G. Southard, of Spartanburg, for appellant.

S. R Watt, of Spartanburg, for the State.

BONHAM Justice.

At the March, 1934, term of the court of general sessions for Cherokee county E. B. Bolin, the appellant, was indicted for murder of one S. M. Cash. At the same term he was tried before Judge E. C. Dennis and a jury, was convicted of manslaughter, and was sentenced. An appeal was thereupon taken to this court.

There are altogether fourteen exceptions, eleven being in the original transcript, and three in the appendix, which appendix constitutes an appeal from the order of Judge Dennis settling the case.

A new trial must be granted, hence we will not discuss or recite any of the facts of the case as they appear in the transcript.

We will confine ourselves to a discussion of the exceptions.

T. W. True, Jr., was offered by the state as a witness to testify, and during his cross-examination Mr. Southard asked of him, as to the chief of police of Columbia, this question: "If he swears your reputation in Columbia is that of a thief, a racketeer and a gangster * * *."

Later on the solicitor said: "I object to his calling a man a gangster and a racketeer. It is not for him to say what he is; it is for the jury to pass on that."

Whereupon, the trial judge made this remark: "I think probably the witness is entitled to respect." And this statement of the trial judge constitutes the basis for the first exception. This exception cannot be sustained for the reason that it does not appear that the remark of the trial judge was in any way prejudicial to the appellant. True was cross-examined thoroughly as to where he had lived, the number of times he had been arrested, the charges he had been arrested for; and the chief of police of Columbia did not appear and testify that the reputation of True in Columbia was that of a thief, a racketeer, and a gangster. Ordinarily the rule is that a witness is entitled to respect. This exception is therefore overruled.

When True was on the witness stand, Mr. Southard asked this: "Hadn't been but five days since you started to hold up a mill pay roll in Greenville?"

Whereupon, the trial judge remarked, "Mr. Southard, if you are going to testify you had better go on the stand ."

This statement of the trial judge constitutes the basis of the second exception. This exception cannot be sustained. The alleged question was not a question, but was a statement, and the judge so took it to be. Moreover, in the trial of cases, attorneys in their enthusiasm frequently make statements. It is the duty of the trial judge to conduct the trial in accordance with the established rules; and very frequently it is necessary to remind an attorney that he is making a statement and not asking a question. This is, doubtless, what Judge Dennis had in mind when he made the statement. In view of the statement which provoked this remark, we see no error. Exception two must be overruled.

As to exception three: The testimony was that T. W. True, Jr., and several male and female companions were arrested in Greenville. There were some eight in all. Their photographs were taken; these were offered by the appellant, E. B. Bolin, and the trial judge ruled them out. It is contended that the object for offering these photographs was to impeach the witness, T. W. True, Jr., ""and to show to the jury just who his associates and confederates were." The trial judge was correct in his ruling, for the reason that had the court allowed these photographs to have been offered in evidence, it would have had to inquire as to just who were the other members of this group. It was too remote, irrelevant, and had no bearing on the case whatsoever. Exception three must, therefore, be overruled.

Exception four complains that the trial judge erred in not admitting the record of the District Court of the United States for the Middle District of the state of North Carolina, showing that S. M. Cash had been convicted in that court for conspiracy, for violating the Harrison Narcotic Law, and for violating the Volstead Act when the same was offered. Under the appellant's plea of self-defense, testimony showing that S. M. Cash bore a reputation for turbulence and violence was relevant and competent. The testimony as to conviction for conspiracy was irrelevant. Hence, exception four cannot be sustained.

As to exception five: Within certain limits an accused is entitled to introduce evidence of his good reputation, although he is not examined as a witness in his own behalf, and although the doctrine of self-defense does not arise, or though the evidence is direct and not merely circumstantial. Where one does so, the state may introduce evidence in rebuttal, and may cross-examine the witness as to his good character; but, except where the character of defendant is an element of the crime charged, and except to the limited extent to which a defendant's reputation may be attacked for purposes of impeachment, when he takes the stand in his own behalf, the state is not entitled to introduce evidence of the bad reputation of the accused unless he has clearly and expressly put his reputation in issue by introducing evidence of good reputation. The rule is, that it is a primary principle in criminal procedure that the state cannot in any way attack the character of the defendant unless that issue is first tendered by the defendant. State v. Knox, 98 S.C. 114, 117, 82 S.E. 278; State v. Frierson, 132 S.C. 362, 128 S.E. 709; State v. Ashley, 128 S.C. 411, 123 S.E. 260; State v. Bigham, 133 S.C. 491, 502, 131 S.E. 603.

The record shows that when the witness F. N. Littlejohn was on the stand, the able solicitor, in his enthusiasm, asked this question: "Would you say that Cash's reputation as being a lawless citizen was any worse than that of a man who had been convicted some four or five times for violation of the Prohibition Law, had his sentence commuted by the Governor, had six months given him for violation of the Prohibition Law?"

And the appellant never once offered his reputation in issue. Objection was made to the question; whereupon the trial judge stated that the solicitor had not asked about the defendant, the judge stating that if that were the object, it would not be relevant. He later sustained the objection on the ground that it tended to attack the reputation of the appellant when it had not been put in issue. But the damage was done when the question was asked.

It has been well said that proof of other crimes, or asking a witness in regard to the conviction of defendant of other crimes, tends to prejudice the defendant with the jurors, to draw their minds away from the real issue, and to create the impression that the defendant is of no value to the community, is not entitled to the benefit of the rules prescribed by law, is depraved in character; but that, however full of crime his past life may have been, the defendant is entitled to be tried upon competent evidence, and only for the offense charged. On at least two different occasions, E. B. Bolin had been convicted of violating the Prohibition Law. State v. E. B. Bolin, 159 S.C. 369, 157 S.E. 79; State v. E. B. Bolin, 164 S.C. 375, 162 S.E. 466. He appealed the cases to the Supreme Court. The Supreme Court sustained each case, and he had served six months for violation of the Prohibition Law.

This question directed the attention of the jurors to the fact that the appellant had been convicted, that his conviction had been sustained, and that he had served his sentence on the chain gain. The question was highly prejudicial, and was in violation of the decisions of this court. The state, by the question, attacked the reputation of the appellant when he never once tendered it. Therefore, subdivision a of exception five must be, and the same is, sustained. State v. Knox, supra; State v. Frierson, supra; State v. Ashley, supra; State v. Bigham, supra; State v. King, 158 S.C. 251, 285, 155 S.E. 409; State v. Kennedy, 143 S.C. 318, 141 S.E. 559; State v. Benton et al., 128 S.C. 97, 121 S.E. 559.

Also, when the witness Joe M. Smith was under cross-examination, the solicitor asked him these questions:

"Did you ever get a drink from Bolin? A. No, sir.

Q. Never bought any from him? A. No, sir."

Here the word "drink" must be construed to mean liquor; and the question intimated a violation of the Prohibition Law, because the attention of the jury had been called to his convictions for violating the Prohibition Law. These questions placed the reputation of the appellant in issue as being a lawless character in Cherokee county. Therefore, subdivision b of exception five must be sustained.

And also must subdivision c of exception five be sustained, for when Olin Vinesette was on the witness stand, the solicitor asked him these questions in speaking of Bolin:

"Did you ever testify for him in Court before? A. No, sir.

Q. Were you one of the crowd of witnesses in a case against him before?"

As to subdivision d in the fifth exception: When Hoyt Wilson was on the stand he testified that he had seen True and Cash eating together in a restaurant in Spartanburg, and the solicitor asked: "What you saw around there gave Bady Bolin no reason to kill Cash, did it?" While we see no reason for asking the question, we do not see where it was prejudicial. Therefore, subdivision d of exception five is overruled.

As to subdivision e of exception five: This goes to the cross-examination of ...