State v. Dickerson
| Decision Date | 09 March 1936 |
| Docket Number | 14248. |
| Parties | STATE v. DICKERSON. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Greenville County; C C. Featherstone, Judge.
J. W Dickerson was convicted of involuntary manslaughter, and he appeals.
Affirmed.
Price & Poag, of Greenville, for appellant.
J. G Leatherwood, Sol., and T. A. Wofford, Asst. Sol., both of Greenville, for the State.
This case, the state, as respondent, against J. W. Dickerson appellant, comes to this court on appeal from a conviction of the said J. W. Dickerson of involuntary manslaughter, in the court of general sessions for Greenville county, wherein the appellant was sentenced by the trial judge of said court, the Honorable C. C. Featherstone, to serve a period of nine months in the State Penitentiary or upon the public works of the said county of Greenville. As set forth in the transcript of record, the defendant J. W. Dickerson, and T. J. Taylor, were indicted at the January, 1935, term of court, charging them with the murder of one John Wesley Baswell, who was killed in an automobile wreck on the Greenville-Greer Highway, on the night of November 3, 1934. On the trial of the case January 24, 1935, the said J. T. Taylor was not put on trial. He was used as a witness and the said J. W. Dickerson only was tried.
The allegations of error imputed to the trial judge are set forth under two exceptions reading as follows:
"Exception 1. That his Honor erred in refusing to permit the defendant to bring out in the testimony from Green Taylor, Greer policeman, the statement made to him by one Mr. Atkins, the driver of the West Virginia truck.
Specification of Error: It is respectfully submitted that this statement was part of the res gestæ, being made within 15 or 25 minutes of the accident and while all of the parties were still present, and was unquestionably a part of the res gestæ. The exclusion of this testimony was prejudicial to the defendant, in that the said Atkins was a resident of West Virginia and could not be forced by the defendant to appear at the trial, and the statement made by him at the time as to who was driving the truck was material and important to the defendant, and, being made under the circumstances, was clearly a part of the res gestæ.
Exception 2. That his Honor erred in overruling defendant's motion for a directed verdict upon the ground that there was not sufficient evidence to go to the jury in support of the allegations of the indictment, that the defendant had recklessly killed the deceased and that there was no evidence of a reckless act on the part of the defendant.
Specification of Error: It is respectfully submitted that under the law of this State a defendant in such a case as the one at bar cannot be convicted upon proof of simple negligence, but that the State has to prove gross negligence or recklessness, and that there was no proof that the defendant was guilty of negligent conduct, which was the proximate cause of the death of the deceased."
The physician who made the post mortem examination of the body of the deceased, John Wesley Baswell, testified during the course of his examination, that he found numerous bruises on the body of the deceased; that almost every bone in his skull was fractured; the left side of his face crushed, and also called attention to other wounds of the body. It is conceded that the death of the deceased was caused by the collision, and in this connection we call attention to some of the facts leading up to his death.
On the night of the accident involved, resulting in the death of the deceased, John Wesley Baswell, the said John Wesley Baswell, in company with three other parties, his wife, Mr. Maurice Hempley, and Miss Jeanette Ballenger, after dining at the home of Mr. Baswell, attended a show in the town of Greer; when the show was over, the four, riding together in an automobile, started to the home of Miss Ballenger some distance away at Chick Springs, for the purpose of taking Miss Ballenger home, and on their way to Miss Ballenger's home the accident in question occurred. It appears that they were riding in a Ford roadster, which had a rumble seat, but that all four of the parties, Mr. Baswell, his wife, Mr. Hempley and Miss Ballenger sat in the front seat, with Mr. Baswell driving the car. Mr. Baswell owned the car. In this connection the witness, Mr. Hempley, testified as follows:
"Q. Now, go ahead and tell this jury what, if anything, happened to you all while you were bringing her home; talk out loud so they can hear you? A. We were going down the road on our right side, and I saw the car coming; the lights of the car, and we got close distance, and the truck pulled in front of us off the right hand side of the road over to the left.
Q. You all were driving on your right hand side coming toward Greenville? A. Yes, sir on the right.
Q. When you first saw the truck, what side of the road was the truck on? A. On his side of the road.
Q. His right hand side going toward Greer? A. Yes, sir.
Q. You all were going in the opposite direction? A. Yes, sir.
Q. Now, go ahead and talk out; and then what happened? A. We got in close distance of the truck; he pulled over in front of us intending to turn off, off the road.
Q. Was there a filling station on your right hand side of the road? A. There was some cabins, and I don't know whether they have a filling station or not.
Q. Go ahead. A. And when he did that he blocked the road, and Mr. Baswell swerved his car to the left to try to avoid hitting him and crashed into the side of the truck, and after the crash I don't remember anything about it.
Q. The last time you remember seeing that truck, Mr. Hempley, what was its position in that road? A. It was cross-ways of the road at an angle.
Q. At an angle? A. Or forty-five degrees; it was like this, like the road was like this and it was setting this way.
Q. Had it completely blocked you all's right hand side of the road? A. Yes, sir.
Q. You say the driver of the automobile, Mr. Baswell, cut his car to the left? A. Yes, sir.
Q. And struck the truck? A. Yes, sir.
Q. Do you remember any more after that? A. No, sir.
Q. When was the first time you regained consciousness? A. I was lying out in the road when I came to myself; I don't know how long it had been.
Q. What did you do at that time? A. Got up and went around back of the car and got Miss Ballenger and got her and let her sit down in another car that had stopped.
Q. Was she lying out in the road, too? A. Yes, sir.
Q. Did you see Mr. Baswell there? A. Yes, sir.
Q. Where was he lying? A. He was lying on the upper side of the car.
Q. Did you go to him? A. Yes, sir.
Q. Did you examine him? A. No, sir.
Q. Could you tell whether or not he was dead? A. I couldn't tell for sure.
Q. And where this accident happened, that is in Greenville County, is it? A. Yes, sir.
Q. Now, I will ask you this, had you had anything to drink that night? A. No, sir.
Q. Had Mr. Baswell had anything to drink that night? A. No, sir.
Q. You had been with him how long? A. Well, it had been about four hours and a half from the time I was with him until the accident.
Q. Had anybody in the crowd had anything to drink? A. No, sir.
Q. How fast were you all driving when you saw this truck? A. I would say between thirty-five and forty miles an hour.
Q. Did you see this other truck on the side of the road there? A. Which truck is that?
Q. Did you see the second truck, the one parked there? A. No, sir.
Q. You never did see that truck at all? A. No, sir.
Q. Did you receive any injuries in this accident? A. Yes, sir.
Q. What injuries, if any, did you receive? A. I received a severe cut on the lip, a bunch of my teeth knocked out, and my leg.
Q. Did they carry you to the hospital? A. Yes, sir.
Q. About the road there where the accident happened, is there any curve there or is the road straight? A. The road is perfectly straight.
Q. From the time you first saw that truck and from the time he could see you, what would you say the distance would be? A. He could see us for a hundred or a hundred and fifty yards.
Q. How far could he have seen the lights on your car? A. I don't know exactly, it is a good ways, though.
Q. How far could you see his, approximately? A. I could see about two hundred yards.
Q. Now, then, did you have your lights turned on on the car? A. Yes, sir.
Q. Were the lights on on the truck? A. Yes, sir.
Q. Did you examine the truck after that? A. I did not.
Q. Let's get one point straight; I will ask you this; going toward Greer on the highway where the accident happened, which side of the road are those cabins and filling station on, going toward Greer from here? A. On the left hand side of the road.
Q. And the truck was traveling toward Greer? A. Yes, sir.
Q. And you were traveling toward Greenville? A. Yes, sir.
Q. How far is that from Wingo's Camp out there? A. From Wingo's Camp, I imagine it is about three hundred yards.
Q. About three hundred yards toward Greer or toward Greenville? A. Toward Greenville.
Q. Three hundred yards this side of Wingo's Camp? A. Yes, sir.
Q. Is that all you know about this? A. Yes, sir; that is all I know about it."
On the cross-examination this witness, Maurice Hempley, testified, in substance, as follows:
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