State v. Hall

• Decision Date: 06 May 1926
• Docket Number: 11975.
• Citation: 133 S.E. 24,134 S.C. 361
• Parties: STATE v. HALL.
• Court: South Carolina Supreme Court

133 S.E. 24

134 S.C. 361

STATE v. HALL.

No. 11975.

Supreme Court of South Carolina

May 6, 1926

Appeal from General Sessions Circuit Court of Spartanburg County; M L. Bonham, Judge.

Fred Hall was convicted of manslaughter, and he appeals. Affirmed.

Nicholls Wyche & Byrnes, of Spartanburg, for appellant.

I. C Blackwood, of Spartanburg, for the State.

COTHRAN J.

The defendant was tried for the murder of one T. D. Curtis in July, 1921; he was convicted of manslaughter and sentenced to two years' imprisonment. A previous trial had resulted in a similar verdict, the judgment upon which was reversed by this court in 127 S.C. 256, 120 S.E. 849, for error in the admission of an alleged dying declaration made a few days before his death. Upon the trial under review the state offered the testimony of the widow of Curtis tending to establish a dying declaration made by the deceased on the morning after the alleged attack was made. The introduction of this declaration is the gravamen of the appeal.

The facts as gathered from the "case" appear to have been as follows: The defendant was riding along the highway near the town of Landrum, in a buckboard buggy drawn by two horses; his wife accompanied him. At a point in the road near Landrum they overtook the deceased, Curtis, and one Lewis Reno, whose automobile had become disabled in the ditch near the roadside. The deceased and Reno accepted the invitation of the defendant, Hall, and got up behind in the buckboard buggy, to ride to Landrum. After going a short distance an altercation arose between Hall and the other two men, Curtis and Reno, and a fight took place between the three on the roadside. Curtis was knocked down by Hall, and Reno ran away. Hall and his wife went on into Landrum. The fight occurred between 8 and 9 o'clock at night, and Curtis was found early the next morning in a cornfield several hundred yards from the scene of the fight, helpless, badly beaten up, and bleeding from a wound in his head, besides with bruises on his body and a broken rib. He was carried by those who had found him to his home and put to bed. Within a short time he developed pneumonia, from which he apparently recovered sufficiently to sit up around the house, being, as his wife expressed it, "up and down." Later he had a severe relapse, and after lingering several days died on August 4th, about 33 days after the attack.

The alleged dying declaration which was admitted, and the admission of which is the mainstay of the appeal, was alleged to have been made in the presence of and to the wife and daughter of Curtis the morning after the fight, soon after he was brought to his home. It was to the effect that he, Curtis, had been out collecting, and on returning the car got out of condition; that he and Reno were together; that they left the car on the roadside and started walking into Landrum; that Fred Hall, the defendant, came along and invited them to ride; that they got into the buggy driven by Hall; that they had ridden but a short distance when Hall became angry at Reno and struck at him twice; that he then turned on Curtis and struck him above the ear with a pistol, knocked him down, and stamped upon and beat him, breaking his ribs; that later in the night Hall returned and kicked him again and robbed him of $35.

As a foundation for the admission of this declaration the state offered the testimony of Mrs. Curtis and of Mrs. Eton, a daughter of Curtis, to the effect: That at the time of the declaration Curtis said: "I am dying; there is no hope for me. Fred Hall has killed me." That Curtis lived 35 days after that, but that he "suffered something awful, agony every day and minute that he lived until he died." Dr. Jervey, who was called in as a consulting physician, stated:

"That he first saw Curtis several days, probably five or six, after the assault; 'I found him in a critical condition, very critical condition; he was suffering from pneumonia. He had air all in the cellular tissue of his body going from his ear down to his hips.

Q. Was he in imminent peril of death at that time? A. Yes, sir.

Q. Would you or not say, Doctor, that he was in imminent danger of death, or death was imminent from the time of the infliction of that wound? A. Yes, sir; his condition was extremely critical from the moment, from the time of the trauma, the time of the assault, up until the time of his actual death; he was at all times in extreme danger."

The physician also testified that Curtis was suffering from a compound fracture of his ribs; that a broken rib had pierced his lung; and that when that happened it opened up the raw lung tissue in connection with the wind pipe, which is full of organisms, and that this caused blood poison, which really was the cause of his death.

The rule as to the admissibility of a dying declaration has been frequently stated by this court as follows:

"To render these declarations admissible, it was only necessary that the trial judge should be satisfied: First, that the death of deceased was imminent at the time the declarations were made; second, that the deceased was so fully aware of this as to be without hope of recovery; third, that the subject of the charge was the death of the declarant and the circumstances of the death was (were?) the subject of the declarations." State v. Faile, 43 S.C. 52, 20 S.E. 798; State v. Taylor, 56 S.C. 360, 34 S.E. 939; State v. Jaggers, 58 S.C. 41, 36 S.E. 434; State v. McCoomer, 79 S.C. 63, 60 S.E. 237; State v. Gallman, 79 S.C. 229, 60 S.E. 682; State v. Franklin, 80 S.C. 332, 60 S.E. 953; State v. Smalls, 87 S.C. 551, 70 S.E. 30; State v. Long, 93 S.C. 502, 77 S.E. 61; State v. Petsch, 43 S.C. 148, 20 S.E. 993.

It is also held in the case of State v....