State v. Green

• Decision Date: 06 January 1897
• Citation: 26 S.E. 234,48 S.C. 136
• Parties: STATE v. GREEN.
• Court: South Carolina Supreme Court

26 S.E. 234

48 S.C. 136

STATE v. GREEN.

Supreme Court of South Carolina

January 6, 1897

Appeal from general sessions circuit court of Spartanburg county Earle, Judge.

Edward D. Green was convicted of murder, and appeals. Reversed.

The grounds of appeal were as follows:

(1) Because the circuit judge erred in allowing the witness William Blackwell, on the cross-examination of counsel for the defendant Page, to testify as follows: "Q. How far were you from them when you saw them talking? A. They were some 20 or 30 steps; not more than that. Q. They did not seem to be talking any secret? A. They were rather squatted down as well as I remember, talking a little. I could only see the movement of their mouths. I did not hear them. I suppose they had been talking." Because the circuit judge erred in allowing the witness William Blackwell, during the examination of said witness by counsel for the defendant John L. Page, to testify as follows: "He said [meaning Page] he stayed all night there that night, and said that Mr. Green went off,--said he had to go off a little piece,--and he said, 'You stay here until I come back.' He says 'I don't know what about that, Ed, and you gone.' He says, 'You stay, and I will give you twenty dollars'; and he says, 'I don't know, hardly about that, and you gone.' He says: "As far as that is concerned, I could stay without anything, if you want me to stay that bad,' or something to that amount. And he said that Green went, and said when he got back he was asleep, lying in bed, and he said he woke up; Mr. Green was in the house and spoke to him, and he says: 'Well,' he says, 'John, I have killed Ban Carson.' And he says: 'I will give you a hundred dollars to swear that I was here all night; and if you don't swear that,' he says, 'me and Mrs. Carson will both swear that you were there and hope us."'

(2) Because the circuit judge erred in permitting the witness H. E. McDowell to testify that he "had read in standard works on medicine" that strychnine is a deadly poison.

(3) Because the circuit judge erred in allowing the witness T. R. Trimmier to testify; the court having ordered, on motion of defendants' counsel, that the witnesses be separated and excluded from the court room during the examination of the witnesses in the trial, and the said T. R. Trimmier was not so excluded, and heard the examination of the other witnesses.

(4) Because the circuit judge erred in allowing the witness Adam W. Ballenger to testify as follows: "Q. What I want to know is what kind of a place is it [referring to plantation of deceased]. Was it a good, bad, or indifferent? A. Well, from what I could see, it appeared to me that it was a pretty fair place,"--the same being incompetent, irrelevant, and absolutely foreign to the issue.

(5) Because the circuit judge erred in allowing the witness Austin Lee to testify, and in allowing his testimony to go to the jury, when the said witness admitted that he had been tried and convicted of disposing of crop under lien, which, it is submitted, is an infamous offense, and his testimony should not be received in a court of justice.

(6) Because the circuit judge erred in allowing the witness Adam W. Ballenger, when recalled by the state, to testify as follows: "Q. Is there anything you omitted to state in your testimony this morning that you wish to state now? A. One thing: Mrs. Carson told me that Mr. Green told her what to testify to--told her what to swear, what to testify to--at the day of the trial up there. She told me the other day that Mr. Green told her what to swear when she went before the squire,"--the same being an attempt to convict Green on statements alleged to have been made to the witness by Mrs. Carson, and tended to poison the minds of the jurors against Green; and that the circuit judge erred in not striking out said testimony.

(7) Because his honor, the circuit judge, erred in admitting the testimony of the witness L. M. Blackwell, as follows: "Q. Did you ever see the defendant Green at Mrs. Carson's? A. Yes, sir,"--the same being incompetent, irrelevant, and leading.

(8) Because counsel for the state (Mr. Duncan) was allowed, during his argument to the jury, to use the following language: "The argument of counsel [Mr. Thompson] who preceded me amounts to this: Wipe out all the testimony for the state, and you have no case against my client. What does he propose to knock it out with? Does he propose to knock it out with argument of counsel, or by testimony adduced on the part of the defense?--the purpose being to call the attention of the jury to the fact that the defendant E. D. Green did not testify in the trial of said case.

(9) Because counsel for state (Mr. Duncan), during his argument to the jury, was allowed to say (speaking of the defendant Green), "He sat there during this trial, and munched an apple, like a gorilla"; and that said counsel (Mr. Duncan) denounced the said Green in strong and violent language, and called him a "murderer," "villain," "slanderer."

(10) Because counsel for the state (Mr. Duncan), in the course of his argument to the jury, was allowed to say (speaking to, and pointing his finger towards, the defendant Green), "Come forth, thou slanderer, and make thy boasting good"; the same being in violation of the rights of said defendant, and prejudicing his case in the minds of the jury.

(11) Because his honor, the circuit judge, erred in charging the jury as follows: "The state charges that one of these defendants was his wife, and that she conspired with the other defendants to kill and murder her husband, the father of her two little children; that, at the appointed hour on the fatal night, the cruel wife left her husband's chamber, after assuring herself that he was asleep, and met her co-conspirators as it had been planned by all of them, and permitted them to enter that chamber with the settled purpose to kill and murder her unsuspecting husband. If this be true, gentlemen, this crime in its sickening and horrible details [is] without parallel in the history of crime in this state, and could be equaled only in the annals of some barbarous age. But let me warn you here that you must not let the righteous indignation that the recital of the details of such a crime may have aroused in your breasts to influence your judgment in this case,"--the same being a strong expression of opinion of the offense charged, and misleading, as the indictment only charged the defendants with the murder of the deceased, Carson, and did not set out any of the details as contained in the above charge.

(12) Because the judge erred in charging the jury as follows: "Now, this woman, if you believe her testimony, was an accomplice to the commission of this horrible crime; and it is my duty to say to you that while, under the law, you may convict all of the defendants upon her unsupported testimony, yet it is not safe to convict her co-defendants upon her testimony unless it is corroborated in some material particulars by other, independent facts and circumstances. The confirmatory evidence must, in some degree at least, tend to connect other defendants with the commission of the murder, and to show their participation in it, and not merely tending to show that some one committed the crime, or merely tending to prove the existence of some of the attendant circumstances; but, at the same time, you have power to convict upon the testimony of an accomplice, without corroboration. If you believe the testimony of the defendant Fannie Carson, you have the power to convict all of the defendants, without corroboration; but it is my duty to say to you that it is often laid down in the law books that it is not safe to convict upon the testimony of an accomplice, without corroboration,"--the latter part of which charge was misleading, and should have stated that it is not only "often laid down in the law books that it is not safe to convict upon the testimony of an accomplice without corroboration," but that such is the law of South Carolina.

Mooney & Earle and W. W. Thomson, for appellant.

O. L. Schumpett and Duncan & Sanders, for the State.

McIVER C.J.

The appellant was indicted, jointly with Fannie Carson and John L. Page, for the murder of J. A. Carson, called in the testimony "Ban Carson," and the parties were tried jointly in the court of general sessions for Spartanburg county at October term, 1895. The jury rendered a verdict of guilty against Edward D. Green, and the other two defendants were found guilty, with a recommendation to mercy. In accordance with this verdict the defendants Fannie Carson and John L. Page were sentenced to imprisonment for life in the state penitentiary, and the defendant Edward D. Green was sentenced to be hanged on the 28th of December, 1895. Edward D. Green alone appeals, and, upon service of his notice of appeal, the circuit judge made an order suspending the execution of his sentence pending the appeal. The grounds upon which this appeal is based are fully set out in the record, but they are too long for insertion here, though they should be incorporated by the reporter in his report of the case. These grounds, though they have not been numbered in the record, have been numbered by us, for convenience of reference, and raise three general questions: (1) Whether there was error on the part of the circuit judge in his rulings as to the admissibility of certain testimony. (2) Whether there was error in permitting counsel for the state to indulge in certain remarks, in his argument before the jury, deemed prejudicial to the defendant. (3) Whether there was error in the judge's charge to the jury.

The specification of error upon which the first ground of appeal is based is in allowing the witness William...