State v. Heavener

Citation143 S.E. 674
Decision Date12 June 1928
Docket Number(No. 12464.)
CourtUnited States State Supreme Court of South Carolina

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Evidence.]

Cothran, J., dissenting.

Appeal from General Sessions Circuit Court of Greenville County; J. Henry Johnson, Judge.

H. M. Heavener, alias H. M. Marshall, was convicted of seduction, and he appeals. Appeal dismissed.

The order of J. Henry Johnson, trial judge, refusing defendant's motion for a new trial, was as follows:

After trial and conviction upon an indictment charging the statutory crime of "seduction, " defendant, through his attorneys, and within due time, moved the court for a new trial upon the grounds:

(1) That he had been "denied a fair and impartial trial as provided by the Constitution of the United States, Amend. 7, and section 25, art. 1, Constitution of South Carolina of 1895, on account of the use to which the child of the prosecutrix was put during the trial, " in that:

"(a) Under the law of this state, the child of the prosecutrix in a seduction case may be introduced in evidence for one purpose only, to wit, to corroborate the prosecutrix that she has been seduced, and, when the solicitor took the baby in his arms and demanded that the defendant come down before the jury and take the child in his arms for the purpose of comparing their features and proving a physical resemblance between the two, his honor ruled that the defendant could refuse to do so only upon the ground of his right to refuse to give evidence against himself. That this ruling was prejudicial and incorrect, and prejudiced the defendant before the jury, in that it put him in the light of refusing because of guilty knowledge. That his honor should have ruled unequivocally that the child could not be introduced in evidence for the purpose of comparison."

"(b) His honor erred in permitting the solicitor in his argument, over objection of counsel for defense, to exhibit the baby to the jury and dramatically claim that the defendant was the father of the child by claiming resemblance.

"(c) His honor erred in permitting the solicitor in the course of his argument to take the baby in his arms and stand before the jury, using said child as an exhibit; said action being calculated to inflame the minds of the jury and prevent them from giving the defendant that fair trial guaranteed by the Constitutions of the United States and the state of South Carolina."

And (2) for alleged error of the court in refusing to charge the jury, pursuant to defendant's sixth request to charge:

"The court instructs the jury that it is true that the law presumes that every woman is chaste and of good repute until the contrary appears; but also does the law presume every one to be innocent of crime until he be provenguilty. Hence we have one presumption nullifying the other, and in criminal trials the presumption of the innocence of the accused is stronger and must prevail fill it is overcome by evidence beyond a reasonable doubt."

The first three grounds of the motion being presented by Mr. Price, of Bonham, Price & Poag, in a "special motion, " while the last ground was argued by Mr. Bowen, all of counsel for the defense.

In order that there may be no misunderstanding about the matter, and that the record may be accurate, the court feels constrained to state that Mr. Price was not in the courthouse during the argument of the solicitor, and, upon the hearing of the motion for new trial, Mr. Bowen admitted that no objection was made by, or on behalf of, the defendant to the conduct of the solicitor in taking the baby in his arms before the jury, or in referring to its resemblance to defendant. Mr. Bowen further admitted in open court, on the morning after the trial, and again at the hearing of this motion, that what actually transpired during the course of the solicitor's argument to the jury was substantially as follows:

"Solicitor (speaking): Mr. Foreman and gentlemen of the jury, I asked the defendant, while he was on the stand, if he would step down before you in order that I might compare the baby with him. He refused, and the court ruled that he could not be made to do so over his objection. I then asked him if he would voluntarily do so, and he refused. I then asked him if he would take the baby in his arms where he was (on the witness stand), and he refused, the court ruling that he could not be made to do so over his objection; whereupon I asked him if he would voluntarily do so, and he refused. Now, Mr. Foreman and gentlemen of the jury, if I were charged with a crime of this nature, and innocent of said charge, I would gladly take the child in my arms and step down here before you, Mr. Foreman, and say, 'Compare the two of us.'"

To this argument alone was objection made by the defense, acting through Mr. Bowen, and the court ruled that, since defendant had voluntarily become a witness, it was within the limits of legitimate argument for the solicitor to comment upon his demeanor and conduct upon the stand, just as he might refer in argument to the conduct and demeanor of any other witness during his examination.

It will be observed, therefore, and borne in mind, that none of the grounds of the motion is predicated upon the line of argument to which objection was actually made and ruled upon by the trial judge; and, further, that grounds (b) and (c), as I have designated them, of the special motion of Bonham, Price & Poag, are not properly before me, as the basis of a motion for new trial, unless a trial court is bound, even in misdemeanors, to take from an array of able and astute counsel the right to conduct the defense of their client in their own way, to hold that neither a defendant, nor his attorneys, can waive, even in misdemeanors, any of the "rights of an accused, " and to assume full responsibility for the conduct of the defense of every one brought to the bar to plead to an indictment, to the end that counsel may not, in some unguarded moment of the trial judge, waive, overlook, or fail to urge, either inadvertently or designedly, some "right" of the court's ward.

I cannot willingly subscribe to the grafting of such a dangerous principle upon our system of jurisprudence, for, followed to its logical conclusion, it would mean that the asking of a single incompetent question by the state's attorney, unobjected to at the time by the defendant, or his counsel—whether inadvertently or designedly— could serve as the predicate for a new trial in the event of conviction; otherwise it might be argued that defendant had been convicted upon incompetent testimony, and that therefore he had not received a fair and impartial trial.

[21 Apart from these considerations, however, I shall attempt to show, both upon principle and authority, that, even had there been objection on behalf of the defendant, the exhibition of the child of the alleged seduction is quite relevant and competent, not merely for the purpose of corroborating the testimony of the prosecutrix to the effect that she had been seduced by some one—a practice conceded by the defense, and well recognized in this jurisdiction, as evidenced by the decisions of our court in Rumler v. Gantt, 121 S. C. 117, 113 S. E. 581; State v. Teal, 108 S. C. 455, 95 S. E. 69; State v. Whitaker, 103 S. C. 210, 87 S. E. 1001, Ann. Cas. 1918E, 467; and others—but for the purpose of showing the child's resemblance to the putative father, and thereby corroborating the testimony of the prosecutrix that the particular defendant on trial had seduced her.

It can scarcely be questioned that, in a civil action or criminal prosecution for seduction, it is of little concern that some one had seduced the woman, the material issue is whether the defendant did so; and yet it is argued that the child may be offered to corroborate the testimony of prosecutrix that some one had seduced her, that some one had intercourse with her, but not for the purpose of showing its likeness to defendant and thereby corroborating her charge that he was her seducer. Since the testimony of prosecutrix must be corroborated by other evidence, and since evidence is but "any matter of fact, the effect, tendency, or design of which is to produce in the mind of a persuasion, affirmative or disaffirmative, of the existence of some matter of fact, " I am not impressed with the argument that the fruit of the seduction may not be exhibited to the jury for the purpose of showing its resemblance to the putative father, for the purpose of giving the jury the benefit of all evidence that may shed light upon the matter under investigation; and, if it be argued that evidence deduced from the appearance of an immature child is of too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury, the answer is that such objection goes to the weight rather than to the relevancy of such evidence.

In the instant case, the child, an infant something more than six months of age, was offered and admitted in evidence generally, and without objection on the part of defendant, while the prosecutrix was upon the witness stand, and she was permitted, without objection, to identify it as the progeny of the defendant and herself. If it were proper for her to testify that it was the child of defendant, why should the jury be denied the privilege of the opportunity of finding corroboration of that testimony in the child's likeness to the defendant, if such likeness existed, or of having something to predicate a reasonable doubt as to the guilt of the accused, if, in fact, there were no resemblance?

It will be borne in mind that defendant denied ever having had any intercourse whateverwith prosecutrix, and whether or not her child bore likeness to defendant, and whether or not the jury could find stamped upon its features physical corroboration of the testimony of prosecutrix, were, it occurs to me, proper matters for the determination of the jury,...

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