State v. Evans

• Decision Date: 29 March 1943
• Docket Number: 15518.
• Citation: 25 S.E.2d 492,202 S.C. 463
• Parties: STATE v. EVANS.
• Court: South Carolina Supreme Court

25 S.E.2d 492

202 S.C. 463

STATE v. EVANS.

No. 15518.

Supreme Court of South Carolina

March 29, 1943

C Y. Brown and D. W. Galloway, both of Spartanburg, for appellant.

Samuel R. Watt, of Spartanburg, for respondent.

FISHBURNE Justice.

The indictment in this case is based upon Section 1112, 1942 Code, the pertinent portion of which reads as follows "Any person *** who shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or procure the miscarriage or abortion or premature labor of any such woman unless the same shall have been necessary to preserve her life, or the life of such child, shall, in case the death of such child or of such woman results in whole or in part therefrom, be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for a term not more than twenty years nor less than five years. But no conviction shall be had under the provisions of this section upon the uncorroborated evidence of such woman."

The abortion was performed upon Inez Crawford, a young woman eighteen years of age, on June 23, 1942, by Henrietta Henderson, a former negro midwife, at her home some miles out of the city of Spartanburg. This criminal operation was followed by miscarriage and death, on June 26th, and the defendant was indicted for his alleged part in the crime.

From a judgment of conviction the defendant appeals to this Court raising two issues, the first of which imputes error to the lower Court in admitting over objection the testimony of Sheriff S. M. Henry, in which he undertook to testify to certain statements made by Henrietta Henderson in the presence of the defendant, William E. Evans, while both of them were under arrest in the county jail.

Sheriff Henry and two other officers arranged an interview in which Evans was confronted by Henrietta Henderson, who made accusatory statements to Evans, or in his presence, tending to incriminate him in the procurement of the criminal abortion. This testimony is not over long, and we quote it:

"Q. Whom did you bring into the room, into Mr. Evans' presence? A. Brought Henrietta Henderson.

"Q. What did she state to Mr. Evans, and in his presence? A. She stated that Mr. Evans had come over there to her house, after the car had left her house and the girl; and after she arrived home the girl was at her house a couple of hours, something like that, Mr. Evans come back to her house and stayed for some time; and she carried her out and done the job what she stated. She said that she used something, some instrument on this girl ***.

"Q. What did she say she used it for? A. For to cause a miscarriage.

"Q. Where did she say that took place? A. In her house in the back room, in the presence of Mr. Evans.

" Q. Where did she tell Mr. Evans he was sitting? A. In the room just opposite, on the couch or lounge; said her husband was there with him.

"Q. What happened, when they came out of the room? A. The girl had Ten Dollars folded up in her hand, and give it to Henrietta, and told her Mr. Evans give her the Ten Dollars to give Henrietta ***.

"Q. Wait a minute: What did she say about--did Mr. Evans say anything about he was responsible for it?

"The Court: Don't lead the witness.

"Q. Do you remember what she said and what Mr. Evans said? A. She said Mr. Evans told her that he was the cause of the woman being in that fix.

"Mr. Brown: We are reserving our exceptions ***.

"Mr. Watt: Q. How did she say she left there? How did she say they left there? A. Said he promised her another Five Dollars; and he left there with her in the automobile.

"Q. When she finished telling it, what did Mr. Evans say to Henrietta? A. Well, he denied it.

"Q. What else did he say? When Henrietta told him: 'Mr. Evans, you came by my house after the girl had died, and tried to get me to leave,' what did he say? A. He said he did not do it."

Cross Examination.

"Mr. Brown: Now, subject to our objection and exceptions, we will ask these questions:

"Q. Now, Sheriff, Mr. Evans denied his guilt before and after he saw Henrietta, did he not? A. Yes, sir; he denied it."

There are two questions relative to the reception of this testimony: Was the evidence competent under the rules governing the introduction of confessions and admissions? And, Was its admission prejudicial to the defendant as violating the hearsay rule? If, by the admission of testimony which should not have been received, it is probable that the minds of the jury were influenced to a greater degree against the defendant than if no such testimony had been received, then the error would be deemed prejudicial to the defendant. Entzminger v. Seigler, 186 S.C. 194, 195 S.E. 244.

The appellant contends that the foregoing testimony was inadmissible under the rule announced in State v. Hester, 137 S.C. 145, 134 S.E. 885, to the general effect that testimony as to the failure of a defendant to deny or refute a charge of guilty, made when he is under arrest and in the presence of officers, is inadmissible in evidence in his subsequent trial; that under such circumstances he may stand mute, and his silence will not be taken as a tacit admission of guilt. The Hester case is not applicable here, because the defendant did not maintain silence.

The evidence, however, is objectionable and inadmissible upon another ground. The defendant not only did not stand mute, but made a complete and positive denial of the incriminating statements made by Henrietta Henderson, and under these circumstances the testimony should have been excluded.

Statements accusing or incriminating accused made in his presence, but unequivocally denied by him in toto, are not admissible against him. They do not show an admission, and are not admissible merely because made in his presence. The defendant's denial of the third person's statement destroys entirely the ground for using it. State v. McIntosh, 94 S.C. 439, 78 S.E. 327; 22 C.J.S., Criminal Law, § 734, p. 1265; Pinn v. Commonwealth, 166 Va. 727, 186 S.E. 169; Wigmore on Evidence, 3rd Ed., Volume 4, Section 1072, Page 74 et seq.

The testimony of Sheriff Henry also violated the rule against hearsay, and on this ground was inadmissible. But did the reception of this evidence constitute prejudicial error? The defendant upon his trial was confronted by the witness Henrietta Henderson, and fully exercised his privilege of cross-examining her, and her testimony went much further than the statement she made to the sheriff in circumstantial detail. While the testimony of Sheriff Henry should not have been received, this, in our opinion, did not result in prejudicial error nor affect the result of the verdict, as we shall attempt to show.

It is plain, we think, that the State did not rely for conviction upon the testimony of Sheriff Henry, who was the ninth and last witness offered by the prosecution. Henrietta Henderson, also indicted, had pleaded guilty, and was offered by the State as its first witness. Her testimony showed, step by step, the direct connection of the defendant, Evans, with the crime charged against him. From this testimony, and from that of many other witnesses, the jury was amply justified in believing that the defendant initiated and planned the procurement of the abortion, and was present in the negro woman's house, in an adjoining room, while it was being performed. She testified that the defendant brought the girl to her home and solicited her to perform the criminal operation, and admitted that he was responsible for her condition. It is admitted that Inez Crawford had been employed by the defendant in his undertaking establishment as a receptionist about four months before her death, and that she had her living quarters there. It is further shown that within a few hours after Henrietta Henderson had been arrested and imprisoned, the defendant secured bondsmen for her release at a cost to him of $30, and that he immediately thereafter interviewed her in the effort to suppress her evidence against him. That before her arrest he went out to her home in the country and attempted to get her to flee, which she refused to do.

No contention is made that there was not...