State v. Faile

• Decision Date: 09 January 1895
• Citation: 20 S.E. 798,43 S.C. 52
• Parties: STATE v. FAILE.
• Court: South Carolina Supreme Court

20 S.E. 798

43 S.C. 52

STATE v. FAILE.

Supreme Court of South Carolina

January 9, 1895

Appeal from common pleas circuit court of Lancaster county; Ernest Gary, Judge.

John A Faile was convicted of murder, and appeals. Reversed.

Hough & Hough and Jones & Williams, for appellant.

H. H Newton and W. S. Blakeney, for the State.

GARY J.

At the October, 1893, term of the court of general sessions for Lancaster county the defendant John A. Faile, with William C Faile and Dunbar Robertson, was tried for the murder of John L. Baker, alias James L. Baker, alias Buster Baker. The jury acquitted William C. Faile and Dunbar Robertson, but found the defendant John A. Faile guilty, who was thereupon sentenced to be hanged on the 12th day of January, A. D. 1894. At a previous term of said court an order was granted appointing H. H. Newton and W. S. Blakeney solicitors to prosecute this case in the place of M. J. Hough, solicitor, who was disqualified by reason of having been paid a retainer fee by the defendants before he was elected solicitor. In the indictment, as found by the grand jury, the deceased was described as "John L. Baker." At the commencement of the trial H. H. Newton and W. S. Blakeney, acting solicitors, amended the indictment by adding after the words "John L. Baker" the words, "alias James L. Baker, alias Buster Baker," without sending the indictment back to the grand jury. The following entry appears upon the sessions journal during the October, 1893, term of said court: "Before the grand jury was discharged Messrs. Newton & Blakeney, acting solicitors in the case of The State vs. John A. Faile, William C. Faile, and Dunbar Robertson, arose and announced to the court that, with the consent of Messrs. Hough & Hough, attorneys for the defense in said case, they would amend the indictment in said case by inserting after the name of John L. Baker, wherever the same appears in said indictment, the words, 'alias James L. Baker, alias Buster Baker.' Messrs. Hough & Hough being present and consenting, it was ordered that the indictment be so amended." A motion for new trial was made by the defendant John A. Faile upon several grounds, which will be set forth in the report of this case. The motion was refused. The defendant John A. Faile appealed to this court on the grounds stated in his motion for a new trial, and on the additional ground "that the indictment, as found by the grand jury, contained the name of John L. Baker alone as having been murdered by John A. Faile, Wm. C. Faile, and Dunbar Robertson, and the aliases, to wit, the words, 'alias James L. Baker, alias Buster Baker,' were inserted in the indictment in open court, after said finding of the grand jury, and without warrant of law." Also upon the additional ground that his honor, the presiding judge, erred in excluding testimony as to the alleged uncommunicated threats by the deceased; this court upon motion having allowed the defendant, in favorem vitae, to except to such ruling.

Appellant's attorneys did not argue the first, second, and third grounds. There is nothing in the case showing that any questions but those of fact are involved in them, and, under the numerous decisions in this state, they cannot, therefore, be reviewed by this court. The first three exceptions are overruled.

The fourth exception raises the question as to the admissibility of the dying declarations. The rule governing the admissibility of dying declarations is stated by Chief Justice McIver in State v. Banister, 35 S.C. 290, 14 S.E. 678, as follows: "To render these declarations admissible, it was only necessary that the trial judge should be satisfied (1) that the death of deceased was imminent at the time the declarations were made; (2) that the deceased was so fully aware of this as to be without hope of recovery; (3) that the subject of the charge was the death of the declarant, and the circumstances of the death was the subject of the declarations." There was in this case a compliance with all these requirements. The deceased was shot on Sunday night, and died the succeeding Monday night, only surviving after the difficulty about 24 hours. He was wounded by two balls. One went directly through the upper part of the thigh, striking the femur. The other ball glanced off the crest of the ilium, curved, and came through the intestines, and through the left lobe of the liver, striking against the ninth rib on the same side, and falling down in the cavity of the bowels. The last mentioned was the fatal ball. The doctor was asked: "Well, doctor, what have you to say about the cause of death on that man whom you examined?" He answered: "Well, that ball that made that curve was the fatal ball. It penetrated the bowels in several places, and went through the lower left lobe of the liver, which would have been necessarily fatal. I found the contents of the bowels all loose in the cavity when I cut into it. I found the contents of the bowels all run out, and the mesenteric membranes were wounded." The dying declarations were made on the night of the homicide. The doctor testified that the mind of the deceased was clear, and he said he was killed. Doc Baker, his brother, testified he said: "Doc, I hate to tell you; I am bound to die;" also that the deceased said he was shot in the bowels, and that Buster had no hope of recovery. A. F. Harris testified that Buster said he was a dying boy, and could not live. E. J. Lowry testified that he heard deceased say he was a ruined boy, and was bound to die. Deceased said to George Hunnington: "George, I am bound to die; I am bound to die; I am killed." The deceased stated that night that John A. Faile shot him, and gave the details as to the shooting. There was some testimony as to the conduct of the deceased next day, when he appears to have been in a sinking condition, but we do not regard it as material. This exception is therefore overruled.

We will next consider the exception relative to the amendment of the indictment. Section 13, art. 1, of our constitution provides: "No person shall be held to answer for any crime or offense, until the same is fully, fairly, plainly, substantially, and formally described to him; or be compelled to accuse or furnish evidence against himself; and every person shall have a right to produce all proofs that may be favorable to him, to meet the witnesses against him face to face, to have a speedy and public trial by an impartial jury, and to be heard in his defense by himself or by his counsel, or by both as he may elect." Section 19, art. 1, provides that "no person shall be held to answer for any higher crime or offense unless on presentment of a grand jury, except in cases arising in the land and naval services, or in the militia when in actual service in time of war or public danger. The court in the case of State v. Blakeney, 33 S.C. 111, 11 S.E. 637, uses this language: "If the indictment had been defective in the particular alleged by the appellant, to wit, in failing to state the place of the death of the deceased, then we think the grounds of appeal would demand a reversal of the judgment below. We suppose that it can hardly be necessary to cite authority to the fact that it is absolutely essential in an indictment like that here that the place of the death of the party killed should be alleged therein, and that, in the absence of such allegation, such indictment is fatally defective, and should be quashed on motion made, and we think, further, that such a defective indictment is beyond the reach of amendment. True, under section 5, p. 830, Act 1887, much of the useless phraseology which characterized indictments in former times may be dispensed with, and omissions of mere forms may be cured by amendments; but this act has neither dispensed with essential allegations, nor has it attempted to cure their omissions by allowing amendments to that end. Indeed, we may say that we do not think that the general assembly would have the power to provide for the amendment of indictments to the extent claimed here, and in a matter so vital as the place of the death of the party killed, which is absolutely necessary to be alleged, in a jurisdictional point of view, and must be passed upon by the grand jury in accordance with the constitutional rights of the accused. We do not think, therefore, that the act in question was intended to reach thus far. We concur, too, in the position that, had the indictment been defective in the matter complained of, it would have been error to have allowed the trial to proceed on the indictment as amended, because, as contended, this would have jeopardized the accused upon an indictment not found by the grand jury, and in violation of his constitutional rights. So, too, for the same reason, there would have been error in refusing the motion in arrest of judgment." This principle is also sustained by the cases of Ex parte Bain, 7 S.Ct. 781, and Com. v. Mahar, 16 Pick. 120. The question in this case, however, is not whether such amendment is against the constitutional right guarantied to the prisoner for his protection, but whether he was waived his right to insist upon such constitutional provision. These provisions of the constitution are for the protection and benefit of the prisoner, and can be waived by him when in his judgment it is to his advantage to do so. 2 Herm. Estop. p. 954, says: "Waiver is voluntary, and implies an election to dispense with something of value, or forego some advantage, which the party waiving it might at his option have demanded or insisted upon. A waiver takes place where a man dispenses with the performance of something which he has a right to exact. A party may waive a constitutional as well as a statutory provision for his benefit, as a trial by jury,...