State v. Burnett

• Decision Date: 16 November 1954
• Docket Number: No. 16930,16930
• Citation: 226 S.C. 421,85 S.E.2d 744
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. J. C. BURNETT, Jr., Appellant.

Page 744

85 S.E.2d 744

226 S.C. 421

The STATE, Respondent, v. J. C. BURNETT, Jr., Appellant.

No. 16930.

Supreme Court of South Carolina.

Nov. 16, 1954.

R. B. Hildebrand, York, H. R. Swink, Harry L. Cline, Gaffney, for appellant.

Sol. J. Allen Lambright, Spartanburg, for respondent.

STUKES, Justice.

Upon an indictment which in another, the first, count charged him with assault with intent to ravish, appellant was convicted of assault and battery of a high and aggravated nature. He has presented three questions on appeal which will be discussed in the order followed in the brief. The first is there stated as follows: Did the trial court err in the admission of testimony as to the appellant's marriage and divorce status?

At the time of the crime appellant was twenty-three years old and in the army. The prosecutrix was a college sophomore and out on a Sunday date with appellant in his Cadillac automobile. They had been acquainted only about a week. She testified over objection that appellant represented himself to her as being single and having never been married. He offered in evidence the record of a divorce which he had previously obtained in Florida. In turn, the State offered the record of a divorce obtained in Spartanburg County in the suit of his former wife subsequently to the assault upon the prosecutrix.

The judgments of divorce were admitted by the court solely upon the contention of the State that appellant was married at the time of the assault and the competency of them was expressly so limited. The following is from page 107 of the transcript:

'Mr. Watt: I would like to offer this in evidence.

'Mr. Hildebrand: Your Honor, I object to that, on cross-examination. It can't have any relevancy here in this case. Testimony has already been permitted to be offered on the subject and we do not think it would be competent, to put a raft of documents into the record.

'The Court: Let me see the record.

'Mr. Hildebrand: It may have certain other incompetent testimony. He has been cross-examined on it.

'The Court: Mr. Hildebrand, it is competent for one purpose, and one purpose only. And I have to admit it on the ground that in view of his testimony here, he said he thought he was divorced, he didn't think he was a married man. I will have to admit the record because of the contents of his answer. On that question.

'Mr. Watt: I might state, Your Honor, the State has no other desire to put anything in except for the sole purpose, to show when the divorce was granted.

'The Court: All right.'

However, the entire judgment roll of the Spartanburg court, which included the complaint of appellant's former wife containing allegations of various wrongdoings on the part of appellant and the decree based thereupon, were included. The instant record negatives publication of the contents to the jury during the trial, but at the conclusion of the judge's charge he said to them in open court, 'You may have all the exhibits in the case.' Presumably, although the record does not affirmatively show, the jury took the records of the divorce proceedings with them to their room.

The brief concedes, in effect, that the judgments of divorce were competent because the marriage status of appellant at the time of the assault was pertinent upon the question of appellant's intent, but contends and we agree that the contents of the pleadings and decree of the Spartanburg divorce action were irrelevant and incompetent. Appellant was adjudged in the decree to be the father of a child which was conceived before his marriage to the mother whom he soon afterward deserted and failed to support.

As said above, the court properly restricted the reception in evidence of the divorce proceedings to prove the existence and results of them and not the contents. When the judge followed the usual course and told the jury at the end of his charge to them that they might have the exhibits, it was incumbent upon counsel (who are able and experienced) to object, which they did not do in any manner. They have been expressly asked for requests for further instructions and they replied in the negative. It was a palpable inadvertence on the part of the court to which attention should have been called and a ruling then obtained. If adverse to appellant, it would have been subject to his appeal. In the absence of timely objection, it is not.

A defendant may not reserve vices in his trial, of which he has notice as here, taking his chances of a favorable verdict, and in case of disappointment, use the error to obtain another trial. State v. Simon, 126 S.C. 437, 120 S.E. 230.

In State v. Ballew, 83 S.C. 82, 63 S.E. 688, 690, 64 S.E. 1019, the jury were taken to the scene of the jail escape, for aid in which the defendants were on trial, and were accompanied by the counsel. They made improper experiments and the error was assigned. New trial was refused because of the failure of counsel to bring the misconduct to the attention of the court. In the affirming opinion, by Mr. Justice Woods, it was said: But defendants' counsel was himself present for the very purpose of seeing that there was no unfairness towards the defendants, and, if he felt aggrieved by the action of the jury, he was bound to exercise his right to complain as soon as practicable. The defendants with full knowledge of the misconduct of the jury, having chosen not to complain to the court, but rather to take the risk of a verdict in their favor, could not afterwards, because the verdict was against them, have a new trial on this ground. The general principle that a party cannot take his chances of a successful issue, reserving vices in the trial, of which he has notice, for use in case of disappointment, is universally recognized and obviously just.'

'The general rule, subject to certain limitations and exceptions hereinafter noted, is that an appellate court will consider only such questions as were raised and reserved in the lower court. This rule is based upon consideration of practical necessity in the orderly administration of the law and of fairness to the court and the opposite party, and upon the principles underlying the doctrines of waiver and estoppel. Obviously, the ends of justice are served by the avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. There would be no assurance of any end to the litigation if new objections could be raised on appeals. Where a party has the option to object or not, as he sees fit, the failure to exercise the option when the opportunity therefor presents itself must, in fairness to the court and to the adverse party, be held either to constitute a waiver of the right to object, or to raise an estoppel against the subsequent exercise thereof.' 3 Am.Jur. 25, Appeal and Error, sec. 246.

'It cannot be asserted for the first time on appeal that the court erroneously restricted the purpose for which evidence was admitted. Also, conversely, the failure of the court to limit the consideration of evidence to a particular purpose or issue cannot be complained of on appeal in the absence of any request in the trial court that it be so limited.' Ibid, p. 96, sec. 351.

The trial court in the case at bar was not advised of appellant's objection to the submission of the exhibits to the jury even on his motion after verdict. In stating grounds for new trial, it was simply said at the end: '* * * and another ground, based upon the admissibility of the court record which involved the divorce proceeding which was offered in evidence by the State.'

We do not...