State v. Crosby

• Decision Date: 13 May 1931
• Docket Number: 13137.
• Citation: 158 S.E. 685,160 S.C. 301
• Parties: STATE v. CROSBY.
• Court: South Carolina Supreme Court

158 S.E. 685

160 S.C. 301

STATE v. CROSBY.

No. 13137.

Supreme Court of South Carolina

May 13, 1931

Appeal from General Sessions Circuit Court of Colleton County; J. K Henry, Judge.

Ashley Crosby was convicted of assault and battery with intent to kill and murder, and he appeals.

Affirmed.

Padgett & Padgett, of Walterboro, for appellant.

Randolph Murdaugh, Sol., of Hampton, and Padgett & Moorer, of Walterboro, for the State.

CARTER J.

The defendant, Ashley Crosby, was tried at the January, 1930 term of court of general sessions for Colleton county before his honor Judge J. K. Henry, and a jury, under an indictment charging him with assault and battery upon M. B. Kiser, with a shotgun, with intent to kill and murder the said M. B. Kiser on the 12th day of December, 1929. Upon a verdict of guilty the defendant was sentenced to serve a term of 10 years at hard labor upon the public works of Colleton county or a like term in the State Penitentiary. From the verdict, sentence, and judgment of the lower court, the defendant, upon due notice, has appealed to this court, imputing error to the trial judge in the particulars set forth in the several exceptions, which we will consider in the order presented.

Exception I. "The Court erred in not granting a continuance of the case upon the ground of the defendant's physical condition and the condition of his infant child, the error being that such refusal was an abuse of discretion and not conformable to the orderly trial of cases in South Carolina."

As disclosed by the record before us, the trial judge made diligent inquiry as to the physical condition of the defendant and his child for the purpose of determining whether or not the defendant was able to attend court, and, with this end in view, his honor examined, in open court, physicians who had made a physical examination of the defendant and the defendant's child. After hearing the statement of the physicians as to the condition of the defendant and his child, his honor reached the conclusion that the defendant was able to come to trial, and therefore, refused the motion for a continuance. Thereafter, counsel for the defendant moved for a continuance upon the ground that he had not had sufficient time to prepare the case, having only recently been employed. This motion was also overruled, but the case was not forced to trial immediately but was set for two or three days later.

There was no abuse of discretion on the part of the trial judge in overruling the motion for a continuance, and, therefore, under the well-recognized rule, this exception cannot be sustained. As this court has often declared, matters of continuance must be left to the sound discretion of the court, and unless it clearly appears from the record that there was an abuse of discretion, this court will sustain the action of the trial judge. See State v. Walker, 79 S.C. 107, 60 S.E. 309; State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A. L. R. 1133; State v. Martin, 155 S.C. 495, 152 S.E. 738.

Exception II. "The Court erred in refusing to withdraw the case from the jury after the witness, M. B. Kiser, had testified, the error being that the witness was not in any condition to be cross-examined, thereby depriving the defendant of the substantial right of cross-examination."

It appears from the record that M. B. Kiser, the prosecuting witness, to whom reference is made in the exception, was brought into the courtroom in a rolling chair, in a reclining position, under the care of two physicians and a nurse. It further appears that Kiser had been in the hospital a greater part of the time after being shot by the defendant as charged. Counsel for appellant, it appears, after the direct examination of this witness, did not attempt to make a cross-examination, and states in his brief that he did not do so because he did not feel that he could "conscientiously ask the witness a single question," and made a motion to have the case withdrawn from the jury upon the ground, it appears, that it would be improper for him to undertake to cross-examine him on account of his physical condition. Counsel cites, in support of this motion, the case of State v. Bigham, 133 S.C. 491, 131 S.E. 603. According to our view the case cited is not in point. On the trial of the Bigham Case one of the witnesses, after examination by the state, died before the defendant had an opportunity to cross-examine him. In the case at bar the defendant made no effort to cross-examine the witness. The exception must be overruled.

Exception III. "The Court erred in charging the jury as follows 'If he has established those things by the preponderance of the evidence each one of them, then, he is entitled to be acquitted on the plea of self-defense, that is, his only defense I believe he has. If he has not established that and find him guilty of one or the other verdicts,' the...