State v. Brown

• Decision Date: 24 January 1891
• Citation: 12 S.E. 662,34 S.C. 41
• Parties: STATE v. BROWN.
• Court: South Carolina Supreme Court

12 S.E. 662

34 S.C. 41

STATE v. BROWN.

Supreme Court of South Carolina

January 24, 1891

Appeal from common pleas circuit court of Lexington county WITHERSPOON, Judge.

P. H Nelson, for the State.

Meetze & Muller, for defendant.

McIVER J.

In this case the defendant was indicated for and convicted of the murder of one Lem Jackson, called by some of the witnesses Glen Jackson, and has appealed upon several grounds set out in the record. It seems that defendant rested his defense mainly on the plea of self-defense, alleging that the deceased had entered into a conspiracy with John Johnson and Mack Johnson, on the Sunday preceding the Monday on which the homicide was committed; and that he, being informed of such conspiracy, was compelled to fire the fatal shot in defense of his own life.

His first ground of appeal, imputing error to the circuit judge in refusing to allow defendant's counsel to introduce testimony to show that such a conspiracy had been formed, is based upon an entire misconception of the rulings of the circuit judge. An examination of the "case" shows conclusively that, so far from refusing to receive testimony tending to show the existence of such conspiracy, the circuit judge distinctly ruled the contrary. In fact, defendant's counsel did offer testimony for the purpose of showing the conspiracy, and all that was ruled was that the testimony adduced was wholly insufficient to show even prima facie that there was any such conspiracy as that alleged; and in that ruling we entirely concur. The first witness offered to show such a conspiracy as that alleged was Hugh Brown, who said: "I heard Lem and John [referring to said John Johnson] call Fred's name. What they were calling it about I don't know. I hear them call Fred's name, and say that they wanted to see him on Monday,--they wanted to meet on Monday; what it was I don't know." This certainly was wholly insufficient to show even prima facie any conspiracy of any kind. The only other witness for this purpose was the prisoner himself, who was offered to prove the conversation he had in jail, after the homicide was committed, with the said John Johnson, one of the alleged conspirators, which it was claimed would show that Johnson had told him that such a conspiracy had been formed. This testimony was very properly ruled out as mere hearsay, for, until there was prima facie proof of the conspiracy, the declarations of one of the alleged conspirators against any one of the others was no more competent than the declarations of any third person who was an entire stranger to the whole matter. The rule, as stated in 1 Greenl. Ev. § 111, is as follows: "A foundation must first be laid by proof, sufficient, in the opinion of the judge, to establish prima facie a fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such facts." And in the same section that eminent writer says "Sometimes, for the sake of convenience, the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy; the prosecutor undertaking to furnish such proof in a subsequent state of the cause. But this rests in the discretion of the judge, and is not permitted except under particular and urgent circumstances, lest the jury should be misled to infer the fact itself of the conspiracy from the declarations of strangers." And again he says, in the same section, that, after caution that the acts and declarations of one of the conspirators must be made or done during the pendency of the criminal enterprise, and in furtherance of its objects: "If they took place at a subsequent period, and are, therefore, merely narratives of past occurrences, they are *** to be rejected." In view of the law as thus laid down by the standard author, we do not see how it is possible to question the correctness of the circuit judge's ruling. The evidence offered and excluded was not only a narrative of past occurrences, but it was offered before any testimony had been adduced even tending to show that a conspiracy had ever existed. There was nothing to show that there was any such particular and urgent circumstances which may sometimes warrant a judge, in the exercise of his discretion, in permitting a departure from the usual and regular order of the proof, upon the assurance that preliminary proof would subsequently be furnished. But, at all events, this is a matter which "rests in the discretion of the...