State v. Franklin

• Court: South Carolina Supreme Court
• Writing for the Court: POPE, C.J.
• Citation: State v. Franklin, 80 S.C. 332, 60 S.E. 953 (S.C. 1908)
• Decision Date: 17 March 1908
• Parties: STATE v. FRANKLIN.

60 S.E. 953

80 S.C. 332

STATE v. FRANKLIN.

Supreme Court of South Carolina

March 17, 1908

Appeal from General Sessions Circuit Court of Orangeburg County; J C. Klugh, Judge.

Pink Franklin was convicted of the crime of murder, and he appeals. Affirmed.

Moorer & Adams, for appellant.

P. T Hildebrand, for the State.

POPE C.J.

The defendants, Pink Franklin and Sad Franklin, his wife, were tried at the fall term of the court of general sessions for Orangeburg county for the crime of murder of one Henry E Valentine. The defendant Sad Franklin was found not guilty and we will therefore dismiss any further reference to her. The jury found the defendant Pink Franklin guilty of murder, and he was duly sentenced to be hanged on the 25th day of October, 1907. The defendant thereupon appealed to this court, and it now becomes our duty to pass upon his grounds of appeal.

At the beginning, before the trial was entered upon, a motion was made to quash the indictment, because the grand jury found the true bill was unconstitutional: (1) Because it is alleged that the law providing for a grand jury was null and void, being in violation of section 17, art. 3, Const. S. C., which provides: "Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title." In effect, it is alleged that the act relating to the selection, drawing, and summoning of juries in the circuit courts of this state, approved the 7th day of February, 1902 (23 St. at Large, p. 1066), and the supplementary act, entitled "An act to amend an act entitled an act relating to the selection, drawing and summoning of jurors in the circuit courts of this state," approved the 7th day of February, A. D. 1902, by adding thereto a section to be known as "section 18a," to provide against an omission in preparing a jury list and boxes, approved January 21, 1905 (24 St. at Large, p. 917). Now, it is perfectly obvious from an investigation of these two acts that their entire text relates to the subject-matter of juries, the impaneling, selection, and drawing. The whole purpose is to provide for juries. It is well known that the provisions of an act devoted to one subject-matter fill the requirements of this section of the Constitution. State v. Crosby, 51 S.C. 247, 28 S.E. 529; Blair v. Morgan, 59 S.C. 52, 37 S.E. 45; State v. Gibbes, 60 S.C. 500, 39 S.E. 1; Barksdale v. Laurens, 58 S.C. 415, 36 S.E. 661; and many more of the same character. This exception is overruled.

The second proposition of the appellant, that the court should have quashed the indictment because the Constitution of 1895 (section 22, art. 5) provides that grand jurors shall be electors of the state, and that electors under the Constitution of 1895 are different from the electors provided for in the Constitution of 1868, and is therefore unconstitutional; the United States government having provided in 1868 in an act dated the 25th day of June (15 Stat. 73, c. 70) that no person who is allowed to vote or to hold office in 1868 shall be disqualified thereafter from being such an elector. (1) Our Constitution of 1895 lays no restriction upon color or previous condition to entitle one to be an elector. (2) The act of Congress cited had no reference to the selection of jurors. It relates solely to an effect upon admission to Congress. (3) But, above all things, it would be wholly inapplicable to our constitutional provisions in regard to juries. We must hold, therefore, that this ground of appeal is not well taken, and is overruled.

Third. It is insisted that so much of our acts of 1902 and 1905 as provides for jury commissioners in selecting grand and petit jurors is unconstitutional and void. We fail to see how the selection of proper and competent jurors is unconstitutional. No reference is made to color or previous condition as prerequisites for service as jurors; for such jury commissioners are merely to select men of good moral character and legally competent. Colored men when they have good character are competent for service on the juries. There is nothing in this ground; and we overrule the same.

Fourth. It is contended by the appellant that his motion for a continuance should be granted. He claims that time was not sufficient for him to examine the testimony at the coroner's inquest. It is true that the handwriting may not have been as good as desired, yet an inspection shows that every opportunity was afforded the appellant and his attorneys for inspecting such testimony. This court has so frequently held that motions for continuance are left to the discretion of the presiding judge. After consideration of this ground of appeal we overrule the same.

Fifth. The appellant insists that the testimony of the two witnesses as to the dying declarations of the deceased, Henry Valentine, should not have been admitted. We have carefully examined the testimony and the law. Quite recently this court in passing upon this question has held in the case of the State v. McCoomer and Spivens, 60 S.E. 237: "Dying declarations are admissible when it appears (1) that the death of the 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 were the subject of the declarations." State v. Bannister, 35 S.C. 295, 14 S.E. 678; State v. Johnson, 26 S.C. 152, 1 S.E. 510. Primarily the circuit judge decides whether these conditions have been met, and this court will not interfere with his ruling except when clearly convinced that he reached an incorrect conclusion prejudicial to the accused . Also, in the recent case of the State v. Gallman, 60 S.E. 682, the court was careful to lay down the law on this subject, which was exactly in accord with the above cited cases. J. H. Easterling, one of the witnesses in this case, speaking of Henry Valentine's condition, says: "He seemed to be suffering very much." And, when asked the question as to the condition of his mind, said: "I couldn't detect anything wrong with his mind. *** He seemed to have realized that he was fatally shot. He had a hemorrhage. He did not seem to have any hopes of life." When asked if the deceased made any explanation in regard to the effect of the wound, he said "that he knew that he was shot fatally, or thought so and knew he was in a bad fix." The witness Walter Hutto, when asked, "Did you talk with Mr. Valentine or not?" answered: "Yes, sir; I did. Q. What was his condition at the time you talked with him? A. He told me that he was shot by Franklin, and was in a dying condition. Q. Did he or not at that time have any hope of life? A. No, sir; he said it was a death shot. He told me that Pink Franklin shot him, and it was a death shot, and, after being there a short while, he pulled off his watch, and said to me: 'Take my watch. I will have no further use for it."' It was very evident that the man was in extremis. He died a few hours afterward, and no doubt was expressed by any witnesses as to his dying condition. Under the circumstances, the admission of this testimony as dying declarations was perfectly legitimate. The circuit judge was not in error, and therefore this ground of appeal is overruled.

Sixth. The appeal insists that the circuit judge was in error in refusing to direct a verdict of not guilty. The Constitution of this state is very explicit in its direction that the circuit judge shall not charge the jury upon the facts. The orderly administration of justice requires that all proper evidence should be admitted, and the jury must determine the facts, and testimony should be exceedingly clear and without contradiction where a Circuit Judge assumes to direct a verdict. There has been full testimony on both sides, and it is the province of the jury to pass upon the testimony. The circuit judge made no mistake...