State v. Dawson

• Court: South Carolina Supreme Court
• Citation: State v. Dawson, 203 S.C. 167, 26 S.E.2d 506 (S.C. 1943)
• Decision Date: 19 July 1943
• Docket Number: 15563.
• Parties: STATE v. DAWSON.

26 S.E.2d 506

203 S.C. 167

STATE v. DAWSON.

No. 15563.

Supreme Court of South Carolina

July 19, 1943

Blease & Griffith, of Newberry, and Blackwell, Sullivan &amp Wilson, of Laurens, for appellant.

B V. Chapman, Sol., of Newberry, and O. L. Long, of Laurens for respondent.

T. S SEASE, Acting Associate Justice.

At the February, 1943, term of the Court of General Sessions for Laurens County, the defendant, Fred Dawson, was tried on an indictment charging him with the murder of one Irvin Jones. A verdict of guilty with recommendation to mercy was rendered by the jury and the defendant was thereupon sentenced by his Honor J. Henry Johnson, presiding Judge, to life imprisonment. From the judgment and sentence of the court imposed upon him, he has appealed to this court upon five exceptions. However, the appellant abandoned the fifth exception and in his argument treated the third and fourth exceptions together. We shall consider the exceptions in the same manner.

The first exception imputes error to the presiding Judge in ruling inadmissible certain testimony of a trained nurse, Miss Julia G. Pettit, to the effect that on the morning after the defendant had fatally stabbed the deceased at his filling station near Watts Mills, and while the deceased was in the Laurens County Hospital, that he said to Miss Pettit in the presence of his wife: "I want to get well so I can apologize to Mr. Dawson."

We are of the opinion that the presiding Judge was correct in excluding this testimony. It seems that the statement was not offered as a dying declaration nor as proof of any threat made by the deceased against the defendant. However, on appeal counsel took the position that at the time the testimony was offered that they did not have before them the testimony of Mr. Ernest Garrett, and, therefore, they should be given the benefit before this court of having offered the statement as a dying declaration.

The testimony was offered, according to the record, as a statement having been made by the deceased against interest and as a part of the res gestae. We do not know of any exception to the "hearsay" rule which makes declarations against interest of parties who later die competent either for or against the defendant. Certainly the testimony is no part of the res gestae. The death wounds were inflicted at the place of business of the defendant on Sunday night about 9 o'clock and the statement was alleged to have been made in the hospital the next morning about 9 or 9:30 o'clock. By no stretch of the imagination could the statement, under these circumstances, be termed a part of the res gestae.

In the case of State v. Rice, 49 S.C. 418, 27 S.E. 452, 61 Am.St.Rep. 816, this court held as follows: "Testimony of a witness as to what prosecutrix told him on the morning after the alleged criminal act was committed was hearsay."

In the case of State v. Belcher, 13 S.C. 459, in passing on a similar question the court ruled as follows: "Statements of the deceased to her attending physician, detailing the cause of the injuries from which death ensued, made some time after the occurrence, are not admissible in evidence against the accused as part of the res gestae, upon his trial for her murder."

We realize that we are not bound by decisions of other States but we agree fully with the holding of the Supreme Court of Georgia in the case of Cole v. State, 125 Ga. 276, 53 S.E. 958, to the effect: "Where a difficulty occurred at night between the accused, and the deceased, and the former struck the latter on the head, from which injury the deceased afterwards died, evidence that, on the morning after such difficulty, the person so stricken stated to the accused and a witness that he himself was to blame for the difficulty, and that he apologized for the way he had treated the accused, was properly rejected; it not appearing that this was a dying declaration, or was offered in rebuttal of any dying declaration."

This court has just as clearly announced the same rule but under different states of fact in two important capital cases. In the case of State v. Bigham, 133 S.C. 491, 131 S.E. 603, 605, the court speaking through Mr. Associate Justice Watts, later Chief Justice, stated this rule of evidence as follows: "Statements of the deceased, and declarations made by him, are not competent evidence either for or against the accused, unless made in his presence or unless they are admitted in evidence as part of res gestae or dying declarations or proved by the defendant as threats against him."

In the case of State v. Hester, 137 S.C. 145, 134 S.E. 885, 902, Mr. Associate Justice Blease, later Chief Justice and now a member of defense counsel in this case, stated the rule as follows: "It is true, as a rule, that testimony as to a conversation between a deceased person and a third party, when the accused is not present, is inadmissible, unless the same can be brought within the rule of res gestae testimony."

As authority for this statement he cited the case of State v. Bigham, supra.

In view of previous decisions of this court to the effect that in a capital case the accused is entitled to the benefit of any error appearing on the record without regard to technicalities we are inclined to consider the testimony as if offered as a dying declaration. When so considered it would have been admissible if it had been shown by evidence that the death of the deceased was imminent; that he was fully aware himself of approaching death so much so as to be without hope of recovery; and that the subject of the charge was the death of the declarant, and that the circumstances of the death of the declarant were the subject of the declarations. Under the testimony the first requirement of admissibility might have been present especially in view of the fact that the deceased did expire between 11 and 12 o'clock on the same day. However, none of the other requirements were present and for this reason it was clearly incompetent as a dying declaration if it had been so offered. State v. Franklin, 80 S.C. 332, 60 S.E. 953; State v. Banister, 35 S.C. 290, 295, 14 S.E. 678.

By the second exception it is urged that the presiding Judge erred in refusing the defendant's motion for a new trial on the ground that one of the bailiffs, Mr. D. F. Little, became intoxicated while discharging his duties as a bailiff.

As nearly as can be ascertained from the record it appears that the trial commenced sometime Monday and that the presiding Judge thought it best to keep the jury together during the progress of the trial and had the sheriff to arrange for lodging for them at the Laurens Hotel. The back of this hotel is just across the street from the court house but the entrance is on the street in front of the jail, and is reached from the court house by going down an alley for about one block. The case did not reach the jury until about 2:30 p. m. Wednesday and a verdict was reached that night about 11 o'clock. The jury was at the hotel Monday night and Tuesday night both prior to the time the case was given to them for consideration. The two bailiffs who served on Monday night were relieved and the sheriff assigned two new bailiffs, Mr. John Martin and Mr. D. F. Little, to take charge of the jury Tuesday night.

It is admitted that when the jury approached the court house on Wednesday morning Mr. Little was observed by the sheriff to be in an intoxicated condition but not unable to walk. The sheriff followed and overtook him at the top of the steps leading into the court house. According to the testimony of the sheriff the jury had followed the head bailiff on into the court house and the last jurors were going in the inside door of the court house when he took charge of Mr. Little. There is nothing to show that any of the jurors saw the sheriff when he took charge of the bailiff. Mr. Martin, who seems to be a highly respected citizen of Laurens County, testified that he did not know Mr. Little was drinking and that he attended to his duties as a bailiff. He was positive that no one talked to the jury or communicated with them otherwise. The presiding Judge stated in his ruling on the motion that he stayed at the same hotel and that he saw Mr. Little late on Tuesday night and that he was apparently sober then. Little testified that he got his whiskey just before breakfast Wednesday morning and had been drinking only a short time.

It is in the discretion of a trial judge as to whether or not he will keep a jury together during the progress of a trial. The sole purpose for keeping a jury together and placing them in charge of bailiffs during a trial is to see that they are not subjected to any outside influence by word or act. State v. Emory, 178 S.C. 461, 183 S.E. 323. There is no showing here that any outside influence reached the jury. The reverse is true. The entire matter was largely in the discretion of the presiding Judge and we see no abuse of discretion in refusing the motion on this ground.

As to the third and fourth exceptions which were argued together.

The appellants contend that the Circuit Judge erred in charging the jury in his supplemental charge as...