State v. Dill

• Court: South Carolina Supreme Court
• Writing for the Court: POPE
• Citation: State v. Dill, 48 S.C. 249, 26 S.E. 567 (S.C. 1897)
• Decision Date: 06 February 1897
• Parties: STATE. v. DILL.

26 S.E. 567

48 S.C. 249

STATE.

v.DILL.

Supreme Court of South Carolina.

Feb. 6, 1897.

Homicide — Evidence of Reputation — Contrabrand Liquor—Arrest without Warrant —Appeal—Charge—Matter of Fact.

1. On a trial for murder, a witness who has testified that defendant is a peaceable citizen, and in good order as such, may be asked on cross-examination if defendant is not known to habitually manufacture and sell whisky in open violation of law.

2. The mere laying of a foundation for the impeachment of defendant's witness, by asking him if he did not make a specific statement under given circumstances, does not entitle defendant to show what was actually said.

3. On a trial for murder, where defendant had been allowed to prove that the deceased had killed a man, as tending to show that defendant knew the deceased to be of a violent character, it was not error to exclude evidence that for that killing the deceased had been indicted.

4. Under Rev. St. U. S. § 788, which provides that marshals shall have, in each state, the same powers in executing the laws of the United States as sheriffs have in executing the laws thereof, and the dispensary act (22 St. at Large, pp. 123-149) §§ 23, 33, 34, 42, providing that sheriffs may, without a warrant, seize contraband liquor and arrest the manufacturer, provided that a warrant shall be procured within a reasonable time thereafter, a United States marshal in South Carolina may make such an arrest without a warrant.

5. Where the court asks defendant's counsel whether he has complied with his request for a specific charge, and the counsel makes no response, he cannot urge on appeal that the court did not read the whole of the request when he allowed it.

6. That the verdict was contrary to the manifest weight of the evidence is too general as a ground of appeal.

7. On a trial for murder, where self-defense is relied on, a charge which recites: "Who was the deceased? Was he or not a deputy United States marshal? Did he arrest defendant? If so, under what circumstances? Under what circumstances did defendant shoot the deceased?" etc., "are questions for you, "—is not, "in respect to matters of fact, " in violation of Const. art. 5, § 26.

Appeal from general sessions circuit court of Spartanburg county; L. D. Witherspoon, Judge.

John Dill was convicted of manslaughter, and appeals. Affirmed.

The grounds of appeal are as follows:

"(1) Because the presiding judge erred in allowing the solicitor to ask the witness John Dill the following question, and permitting the answer to the same, to wit: 'Question. Isn't his reputation there in that community that of a man who is violating the laws of his country, —distilling liquor? Isn't that his reputation? Answer. Well, I suppose so.' The same being irrelevant and incompetent, the defendant having only put in evidence his character for peace and good order.

"(2) Because the circuit judge erred in allowing the solicitor to ask the witness J. B. Dill the following questions, and in allowing the answer thereto, to wit: 'Question. You have heard that, haven't you? Answer. Well, I don't know it to be so. Question. I am not asking what you know of your own knowledge, but what is the general talk. Answer. All I can tell about that is just this: I know that to be so. Men come past my bouse, inquiring the way there. Question. Isn't that the character, the reputation, of John Dill in that community? Answer. It is, I think, sir.' The same being irrelevant and incompetent, not in reply to any testimony brought out by the defendant, and greatly to his prejudice and injury.

"(3) Because the presiding judge erred in not confining the solicitor, in his cross-examination of defendant's witnesses on the question of character, to the question as to the reputation of the defendant for peace and good order; neither the general reputation of the defendant, nor his reputation as a liquor dealer, having been put in issue.

"(4) Because the circuit judge erred in refusing to allow the witness R. B. Babb to an-swer the following question propounded by the defendant's counsel: 'Question. State exactly what you said to Mr. Bearden.' The same being directly in reply to a question previously asked said witness by the solicitor, and in explanation of a conversation alleged to have occurred between said witness and the state's witness C. C. Bearden, in which it is alleged that the said Babb made statements to Bearden about the homicide inconsistent with his testimony on the stand.

"(5) Because the circuit judge erred in refusing to allow the defendant's attorney to introduce in evidence the record in the case of State v. John D. Kirby (with whose killing the defendant is here charged), charged with the murder of one Hammett, the same being competent and pertinent evidence tending to show the violent and turbulent disposition of the deceased.

"(6) Because the circuit judge erred in refusing to allow the defendant's witness Charles Watson to answer the following questions propounded by the defendant's counsel: 'Question. You say you have been arrested by Mr. Kirby. I want to know, if while you were arrested, he inflicted upon you any cruelty, and, if so, what it was. Question. If he has inflicted upon you any acts of cruelty or violence while you were in his custody as a prisoner, state it.' It is submitted that said testimony is competent to show the violent and inhuman treatment of the deceased to his prisoners, to show special acts of violence, and tending to show his violent and turbulent character.

"(7) Because the circuit judge erred in refusing to allow the witness for the defendant, George H. Camp, to answer the following question propounded to him by the defendant's counsel: 'Mr. Mooney: I can prove special instances of violence, and I desire to ask this witness—possibly, it would be more regular to introduce the records—if he has heard of his [meaning Kirby] killing another man. Do you know that fact?' The knowledge of that fact having been brought home to the defendant, and the reputation of the deceased having been put in issue, it is submitted that said testimony is competent and relevant to show special acts of violence, and his violent and dangerous character.

"(8) Because the presiding judge erred in refusing to allow the defendant to offer evidence of special acts of violence committed by the deceased.

"(9) Because the presiding judge erred in not holding that the alleged arrest of the defendant by Kirby, the deceased, was unlawful, for the reason that the said Kirby had no warrant for the arrest of the said John Dill.

"(10) Because the presiding judge erred in not reading the whole of defendant's first request to charge, and in charging as follows: 'I have been requested to charge you, in the first place, that if the defendant, John Dill, was in the possession of that whisky at the time he was arrested— I think that is your first request' (to Mr. Mooney), and then stating to the jury: 'I so charge you, because they are proceeding under this dispensary law, and the dispensary law contemplates that a man must have this contraband whisky in possession at the time it is seized from him, and he, by having it, subjects himself to arrest without warrant.' Said request to charge being as follows: 'First. The jury is instructed that, in order to justify the arrest of John Dill by the deceased and the other officers for having in possession contraband liquor, the liquor must have been found in his possession.' It is submitted that said charge was calculated to mislead and confuse the jury, and is absolutely foreign to the issues involved in this case.

"(11) Because the circuit judge erred in charging the jury as follows: 'Now, Mr. Foreman, the law says you can arrest without a warrant a man found in possession of this contraband whisky, —take the whisky and arrest the man. The act so provides, provided a warrant is issued in a reasonable time thereafter. If you conclude that this was the act of John D. Kirby—that he was a deputy United States marshal who made the arrest, — then it was his duty, if he made the arrest without a warrant, as soon as he could reasonably get an officer, to have a warrant issued against the party charged. That would have been his duty, but if you conclude that before he had time to do that he lost his life, and that he was an officer acting within the terms of the law, then the law never requires an impossibility; and therefore I charge you that, if John D. Kirby was the man who acted in this case in making the arrest and seizure as a deputy United States marshal, it was his duty, —if he arrested him and took possession of the whisky without a warrant, —it was his duty, under the provisions of the dispensary act, to get out a warrant within a reasonable time thereafter. If he did not live for that reasonable time, then the defendant cannot say that his act was unlawful.' Said charge, it is submitted, being erroneous for the reason, among other things, that there is no claim that Kirby arrested Dill for violation of the dispensary law, but for a violation of the United States internal revenue laws, and that it was misleading and erroneous, and his honor should have charged that the dispensary law had no application to this case.

"(12) Because the verdict was...