State v. Faries, 11277.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MARION, J. WATTS, J.
• Citation: 118 S.E. 620,125 S.C. 281
• Parties: STATE v. FARIES.
• Docket Number: 11277.
• Decision Date: 20 July 1923

118 S.E. 620

125 S.C. 281

STATE
v.
FARIES.

No. 11277.

Supreme Court of South Carolina

July 20, 1923

Appeal from General Sessions Circuit Court of York County; James E. Peurifoy, Judge.

William C. Faries was convicted of murder and he appeals. Affirmed.

Thomas F. McDow, of York, and Cole L. Blease, of Columbia, for appellant.

J. K. Henry, Sol., of Chester, J. Munroe Spears, Sol., of Darlington, and John R. Hart, of York, for the State.

MARION, J.

William C. Faries was convicted of the murder of Newton Taylor and sentenced by the presiding judge, Hon. J. E. Peurifoy, to death by electrocution.

Faries is a white man, 60 years old, the father of 16 children. The deceased, Newton Tayler, was a lad of 13, who lived with other members of his family in a house just across the street from the home of Faries in the town of Clover. On September 6, 1922, Faries, from or near the porch of his residence, killed with a shotgun Newton Taylor, for whose murder he was tried, and within a few minutes thereafter shot and killed Newton Taylor's sister, Leila, aged 15, his brother, Fred Taylor, aged 24, and his cousin, Claude Johnson, aged 20, all of whom were in the yard or near the front of the Taylor home. At or about the same time, two [125 S.C. 283] other members of the Taylor family, a little girl, aged 10, and a young woman, aged 22, sisters of Newton Taylor, received gunshot wounds at the hands of Faries. Prior to the date of these homicides there appears to have been some trouble between Faries and the Taylor family as to the use of a well. Immediately preceding the shooting, Faries had been told that the boy, Newton Taylor, had hit one of his children with a rock. The foregoing bare outline discloses the setting of the crime and fairly indicates such factual excuse or extenuation therefor as may be extracted from the record. From the sentence imposed, Faries has appealed to this court upon certain grounds, which will be considered in order.

First, it is contended (exception 1) that the presiding Judge committed reversible error in hearing and passing upon motions for a change of venue and for a continuance in the absence of the defendant. These motions were made by defendant's counsel, after defendant's arraignment, during the afternoon of the day before the trial. The defendant was not personally present. The motion for continuance was so heard "for the convenience and at the request of defendant's counsel." Then the case was called for trial on the next morning, the motions were not renewed and no question was raised nor suggestion made that the interests of the defendant had been prejudiced.

In so far as a defendant's right to be personally present at his trial is guaranteed by constitutional provision such guaranty is contained in the following language of section 18, art. 1, Const. 1895:

"In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * and to be fully heard in his defense by himself or by his counsel or by both."

That the personal presence of the accused at the hearing of a motion for change of venue or for continuance, made by his duly [118 S.E. 621] accredited counsel, is not within either the letter [125 S.C. 284] or the spirit of the foregoing constitutional mandate, would seem too clear to justify argumentative comment. At the hearing of these motions the defendant was represented, and was fully heard by his able counsel. His personal presence could have subserved no useful purpose. It cannot be assumed, certainly in the absence of an affirmative showing, that he would have elected, if present, to be heard by himself as well as by counsel. State v. Atkinson, 40 S.C. 363, 18 S.E. 1021, 42 Am. St. Rep 877.

Neither is defendant's personal presence at the hearing of such motions essential within the meaning of the common-law rule, which accords to a defendant charged with a felony the right to be personally present at his trial. 16 C.J. "Criminal Law," §§ 2066, 2068, 326, 940. As the trial, in the sense contemplated, must be necessarily have terminated when a motion for new trial or in arrest of judgment is made ( State v. Jefcocit, 20 S.C. 383; State v. David, 14 S.C. 428), so the trial of the issues joined between the defendant and the state--which is the trial sought to be changed as to venue or continued by these motions--has not commenced and is necessarily still pending when the motions are made. As was said by Chief Justice McIver in passing upon this point, in relation to a motion to quash the indictment, in State v. Atkinson, 40 S.C. 368, 18 S.E. 1023, 42 Am. St. Rep. 877:

"Indeed, it cannot properly be said a trial is commenced until the jury has been sworn and impaneled to try the

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