State v. Gilstrap
| Decision Date | 29 March 1929 |
| Docket Number | 12624. |
| Parties | STATE v. GILSTRAP et al. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Oconee County; W. H Townsend, Judge.
Ira W Gilstrap and another were convicted on a charge of housebreaking and larceny, and they appeal. New trial granted.
M. C Long, of Walhalla, for appellants.
L. W Harris, Sol., of Anderson, for the State.
Appellants are charged in the indictment with housebreaking and larceny. The indictment is regular in form, the first count charging housebreaking, and the second count charging grand larceny.
Appellants were tried at the November, 1928, term of general sessions court for Oconee county. The jury rendered a general verdict of guilty, and the presiding judge sentenced appellants to serve three years at hard labor in the state penitentiary.
The testimony is correctly set out in the agreed return. Appellants' exceptions, four in number, all relate to the admission of the following testimony, and the ruling of his honor, the presiding judge:
This testimony was clearly irrelevant. The defendant Gilstrap having been arrested in another county for being drunk, 24 hours after it is alleged the building was broken into, that fact could not possibly throw any light upon the alleged charge of housebreaking the night before. In allowing said testimony, the state was permitted to prove a separate and distinct criminal offense against the defendant, which was highly prejudicial to the defendants. The prejudicial effect of a fact of this character was calculated to create the impression that the defendant was a habitual violator of the prohibition law, as well as a habitual drunkard, and which, no doubt, did turn the scales against the defendants in a close case, where the testimony was pro and con. It was the interjection of extraneous matter by counsel for the state, which, in our mind, probably improperly influenced the jury.
We appreciate the fact that when a defendant becomes a witness in his own behalf, his character for truth and veracity is thereby uncovered, but not his general moral character. Sweet v. Gilmore, 52 S.C. 530, 30 S.E. 395; State v. Gibson, 83 S.C. 34, 64 S.E. 607, 916; State v. Robertson, 26 S.C. 117, 1 S.E. 443.
The defendant, when sworn in his own behalf, may be asked on cross-examination about any of his past transactions tending to affect his credibility, but not about such as affects his character in other respects. State v. Mills, 79 S.C. 187, 60 S.E. 664.
The testimony objected to did not tend to impeach the credibility of the witness, and as he had not put his character in issue, the testimony was inadmissible and prejudicial. State v. Knox, 98 S.C. 117, 82 S.E. 278.
There are three reasons why the testimony was erroneously admitted: (1) Because it did not tend to affect the credibility of the witness; (2) such testimony tended to subject the defendant to a penal liability or to some kind of punishment, or to a criminal charge; and (3) because the defendant had not put in issue his character. State v. Knox, 98 S.C. 118, 82 S.E. 278.
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