State v. Duncan

• Decision Date: 18 July 1910
• Citation: 68 S.E. 684,86 S.C. 370
• Parties: STATE v. DUNCAN.
• Court: South Carolina Supreme Court

68 S.E. 684

86 S.C. 370

STATE v. DUNCAN.

Supreme Court of South Carolina

July 18, 1910

Appeal from General Sessions Circuit Court of Aiken County; Geo. W Gage, Judge.

Mark Duncan was convicted of manslaughter, and he appeals. Affirmed.

Headersons for appellant. Solicitor Jas. F. Byrnes, for the State.

HYDRICK J.

Appellant was convicted of manslaughter for the killing of William Brooks. He and Brooks had a fight on Wednesday night, about 8 o'clock, in which appellant admitted that he used his knife and tried to cut Brooks, but did not know whether he had done so or not. After they fought some time Brooks ran away, and appellant pursued him some distance, but he gave up the pursuit, and returned to the house in front of which the fight occurred, and asked for a gun, saying that Brooks had cut him. He then reported the matter to the town constable, who with a crowd, accompanied also by appellant, went in search of Brooks, but he was not found until the following Friday, when his dead body was found in a field near the place where the fight occurred. His jugular vein was cut, and he died of hemorrhage. There was testimony that Brooks had been drinking during the afternoon of Wednesday with two other men, and that one of them had been heard to threaten, after they had separated, to find him and whip him, because he had carried off their liquor. But there was no testimony that they, or either of them, or any other person, had any difficulty with Brooks after the fight with appellant, or even that any one saw him, until his dead body was found.

The following statement is taken from the record: During the course of his argument before the jury, Mr. D. S. Henderson, of counsel for the defense, referred to the policy of newspapers crying for conviction of persons charged with homicide, stating he was tired of it. The solicitor, in opening his argument to the jury, referred to the remarks of Mr. Henderson, and stated no such charge could be made against Mr. Henderson, because he was always asking for acquittals; that at a former term, he (Mr. Henderson) had stated before a jury the number of acquittals he had secured in homicide cases. At this point, Mr. Henderson objected, stating: "The solicitor, in his argument to this jury, has no right to say anything about my acquitting people, and I object to it, and want my objection put on the record. I call him to order. The solicitor: I withdraw that then. The Court: You have no right to argue that, Mr. Solicitor. Proceeding, the solicitor stated: But, if everybody is not guilty it is remarkable that it should be necessary for four homicides to have been committed within a radius of four miles of Bath. Mr. Henderson: I want to call the solicitor to order again. He has no right to say to the jury that, within a radius of four miles of Bath, four homicides have been committed. The Court: Is that a fact? The Solicitor: Yes; there are four indictments in this court so alleging and counsel will admit it. Mr. Henderson: There is no such testimony in this case. The Court: I understand, if it is a matter of public record, I think the solicitor has a right to refer to it. Mr. Henderson: I object. The Court: Yes, sir." The solicitor stated that everybody knew that there were four indictments for such homicides, and counsel for the defense couldn't deny it, but that all this has nothing to do with the facts of this case. As said by Mr. Henderson, every case, like every tub, must stand on its own bottom.

Error is assigned because the court allowed the solicitor, over the objection of appellant's counsel, to state to the jury that four homicides had been committed within four miles of Bath, the place of the homicide in question. There can be no doubt that the ruling was erroneous. The fact that other homicides had been committed had no relevancy whatever to the issues before the court in this case. The only question which has given this court serious concern is whether the reference to other homicides, made, as it was, under the sanction of the court, was so prejudicial to appellant as to call for a reversal of the judgment. Counsel on both sides in every case, but most especially in criminal cases, should be careful not to inject into the case prejudicial matter by way of statement or argument, which does not properly arise out of the evidence before the court, or inference which may reasonably and legitimately be drawn from it. Within the four corners of the evidence, great latitude in argument is allowed. But it is the duty of the court, of its own motion, to check any departure from the record. And when abuse of privilege of argument is allowed, against objection, to such an extent that it appears probable that the verdict was thereby affected, a new trial will be granted. The law guarantees every litigant a fair and impartial trial, and this has not been secured, where the verdict has been influenced by consideration outside of the evidence.

But, as said in State v. Robertson, 26 S.C. 118, 1 S.E. 444: "It is often a matter of difficulty to draw the line sharply between argument and unauthorized statement, between what is and what is not allowable, and as this pertains to the conduct of the cause, it must, to a large extent, be left to a wise discretion of the circuit judge." In State v. Williamson, 65 S.C. 248, 43 S.E. 673, the court said: "It is undoubtedly the duty of the circuit court, when appealed to, to repress any flagrant breach by counsel of the rules governing fair and legitimate argument, and for manifest abuse of discretion in this regard, from which it is probable that defendant was prejudiced, this court would set aside the verdict." It is argued that it is impossible to say when and to what extent the case of a litigant is prejudiced by the unauthorized statements of counsel. But it certainly will not do to say that for every departure from the record, the verdict of the jury will be set aside. If the record shows that no other verdict could have been found upon any reasonable view of the evidence, we are safe in concluding that no harm was done. If, however, an examination of the record and consideration of all the circumstances, imputing fair and average intelligence and honesty of purpose to the jury, leads to the conclusion that the result was probably affected, then, we think, a fair and impartial administration of the law demands a new trial.

In deciding the question, it is not improper to consider the circumstances under which the alleged abuse of the privilege of...