State v. Gibert

• Decision Date: 24 February 1941
• Docket Number: 15218.
• Citation: 13 S.E.2d 451,196 S.C. 306
• Parties: STATE v. GIBERT.
• Court: South Carolina Supreme Court

13 S.E.2d 451

196 S.C. 306

STATE v. GIBERT.

No. 15218.

Supreme Court of South Carolina

February 24, 1941

J Moore Mars and J. M. Nickles, both of Abbeville, for appellant.

Hugh Beasley, Sol., of Greenwood, for respondent.

FISHBURNE Justice.

Upon an indictment charging murder the defendant was convicted of manslaughter. He admitted the killing and pleaded self-defense.

Several errors are assigned for the reversal of the judgment herein but the most important and most serious question raised by the defendant is as to the action of the court in permitting the solicitor, over objection, to cross-examine the defendant with reference to previous difficulties in which he had participated.

The accused, prior to taking the stand in his own behalf, had voluntarily put his good character and general reputation in evidence as to peace, quiet and good order. When testifying in his own behalf, the solicitor undertook to impugn his character by cross-examining him as to previous acts of violence, but confined the examination to the particular trait involved in the offense charged, such as, that he had had a physical difficulty with one man, severely injuring him, and had shot another. The defendant admitted the first difficulty but denied the second. The trial court ruled that this cross-examination was competent, upon the ground that the accused had tendered his good character in evidence, but that no testimony as to the details of such encounters would be allowed. He further held that the denial by the defendant of a previous difficulty was not subject to contradiction by the State.

The question presented by the appeal has never, so far as we have been able to discover, been settled in this state by any adjudicated case.

There are many cases in this state illustrative of the principle that the prosecution cannot attack the character and reputation of the accused in a criminal case for the purpose of impeaching him as a defendant unless he first puts his character in issue by introducing evidence to sustain the same. State v. Knox, 98 S.C. 114, 82 S.E. 278; State v. Mills, 79 S.C. 187, 60 S.E. 664; State v. Dill, 48 S.C. 249, 26 S.E. 567; State v Robertson, 26 S.C. 117, 1 S.E. 443; State v. Bolin, 177 S.C. 57, 180 S.E. 809; State v. Anderson, 181 S.C. 527, 188 S.E. 186.

In State v. Robertson, supra, the court adhered to the general doctrine that where the defendant testified in his own behalf without having placed his good character in question, his reputation for truth and veracity is thereby uncovered, but not his general moral character. It may be stated generally that when the accused elects to testify he occupies a dual capacity --as a defendant and as a witness; and as a witness he is subject to the usual duties, liabilities and limitations of witnesses generally, to the extent that his character as to truth and veracity may be impeached, and he may be asked upon cross-examination about any of his past transactions tending to affect his credibility, but not about such as affect his character in other respects. State v. Williamson, 65 S.C. 242, 43 S.E. 671; State v. Mitchell, 56 S.C. 524, 35 S.E. 210.

However, we see no good reason why the defendant may not be cross-examined, where his good reputation has been put in issue, as to particular acts which manifestly bear reference to the trait of character covered by the charge in the indictment, provided such evidence excludes the details of such transaction. Such testimony in a great many homicide cases, involving self-defense, would tend to show who was probably the aggressor. By logical inference from the holdings in many of our cases it may clearly be deduced that when good character is in issue a wider latitude may be allowed on cross-examination of a defendant than when it is not, and that the defendant in such case may be asked questions which impeach his character with respect to the particular character trait tendered by him--subject to the rule that he may not be contradicted.

In State v. Bolin, supra, the defendant was charged with murder, and did not put his good character in evidence. The solicitor over objection was permitted to cross-examine the defendant with reference to other specific acts of violence. The court held that these questions were highly prejudicial, for in effect the reputation of the defendant for being a man of violence and turbulence was placed in question, when such issue had not been tendered. The clear implication of this holding is that if the defendant, Bolin, had offered his good character in evidence as a man of peace and quiet, such cross-examination would have been competent.

In State v. Knox, supra, the defendant's good character had not been tendered, and the trial court allowed the solicitor over objection on cross-examination to interrogate the defendant, who was charged with assault and battery with intent to kill, as to other particular acts of violence. The court held that this was reversible error, because such testimony did not tend to impeach the defendant's credibility, and "as he had not put his character in issue for peace and good order, the testimony was not admissible." [98 S.C. 114, 82 S.E. 279.] Again, the clear inference may be drawn that if the defendant's good character had been in issue, such cross-examination would not have been objectionable. To the same effect and illustrating the same point are the cases of State v. Gilstrap, 149 S.C. 445, 147 S.E. 600, and State...