State v. Hester

• Court: South Carolina Supreme Court
• Writing for the Court: BLEASE, J.
• Citation: State v. Hester, 134 S.E. 885, 137 S.C. 145 (S.C. 1926)
• Decision Date: 04 October 1926
• Docket Number: 12077.
• Parties: STATE v. HESTER et al.

134 S.E. 885

137 S.C. 145

STATE v. HESTER et al.

No. 12077.

Supreme Court of South Carolina

October 4, 1926

Appeal from General Sessions Circuit Court of Greenville County; H F. Rice, Judge.

Jerry M. Hester and others were convicted of murder, and they appeal. Reversed, and case remanded for new trial.

Cothran J., dissenting. [Copyrighted Material Omitted]

The following is the statement of J. C. Floyd referred to in the opinion:

"On Saturday, December 20, 1924, I was in the employ of Mr. J. Ed Thackston, working for him on the farm-milking the cows and other things. I was around home all day until the afternoon when I went to the store, and there I saw Mr. Ed Thackston in his store attending to his duties. I stayed there in the store with Mr. Thackston until about 4:30 p. m when I left there and went to the dairy to milk the cows. I got there, and there I met Frank Morris, colored, and we milked six cows, getting through about 5 o'clock p. m., when I left the dairy and went on back up the road, passing the store of Mr. Thackston, and went on over the hill to Mr. Jerry Hester's house. Upon my arrival there I saw Mr. Jerry Hester and his wife, Mrs. Hester, and Mr. Hester and I went to the front porch and sat down to talk. In this conversation Mr. Jerry Hester, he told me, 'Well, Charlie is back home now and Mr. Thackston will be done away with.' Then he (Mr. Hester) asked me if I was going back to the store that night, and I replied, 'I don't know whether I will or not.' Then he said, 'I need a little soda,' and with this he sent out to my house to borrow some; his son, Cromo, going with me when I left after it. While we were sitting there talking, and the above conversation passed between us, Mr. Hester said that when I went to the store to get Mr. Thackston back that he would be hid at the brick store, which is located right at the railroad crossing, and that Charlie Hester would be in the dairy yard, and they meant to whip him. After getting a pound of butter from Mrs. Hester, paying her for same, I and the boy sent by Mr. Hester went on to my house, and the object in this boy going with me was for me to see when I got home if there was any excuse for me to have to go to the store, so that I could get Mr. Thackston out for them to whip him. When we got to the house I gave the boy the soda, and went on to the store, believing that he would tell his father, Mr. Hester, that I had gone, and that they would get ready to do their bit when I got Mr. Thackston back to the store, and they could get placed, as had been agreed. I went on to the store, as had been agreed, and when I got there I saw that the store was closed up, and that Mr. Thackston had gone home, and I went right on over the railroad just below the entrance to Mr. Ross's house, and there I whistled for Mr. Thackston, knowing that he would come back to the store for me, for I had heretofore made arrangements with him that on account of us at home expecting a new baby that I was to call the doctor over his phone, and as soon as he heard my whistle he came right on over to the store. He had his money bag with him at this time; that is to say, that when I called him back, as had been agreed with us, he had it with him. When we got to the store, I knew that Mr. Hester was hid at the brick store, as he told me that he would be there, and he had had plenty of time to get there, so when Mr. Thackston got to the store I asked him to let me have some matches. He opened the store, and we both went in; he turning on the lights. He gave me the matches, a five-cent box, and I paid him for them. After I made this purchase, he (Mr. Thackston) asked me 'if I would not go back home with him,' and I told him that I would, and with this I stepped out of the door, leaving him just a short distance behind me, and when I got to the door I stepped down the three steps to the ground, and there stood Mr. Jerry Hester with a shotgun up to his shoulder and told me, 'Run, Floyd,' and with this I ran off up the road towards home. Charlie Hester, his boy, was standing right there beside him when this was done. When I left at his command, Mr. Thackston had not come out of his store, and the store door was not locked, but he was only a short distance behind me. I ran on up the hill as I had been told to do, and went right on home. I had my supper after I got home. As I went on up the hill running, I got to the crossroads and I passed a man, and I think that this man was Claude Hester, as this man was the same build as Charlie Hester. On leaving the Hester house that afternoon, after I had talked to Mr. Hester, and the plans had all been arranged, and as I was coming out the path towards my house, I met Charlie Hester, and he told me that he would be in the dairy yard that night when I got Mr. Thackston out back to the store, and that they meant to whip him. After I got home, I did not hear any more until about 12:20 a. m. Mr. Ross came to my house and asked me if Mr. Thackston was there, and I told him, 'No.' I then knew that something bad had happened, although they did not tell me that they were going to kill him, only that they were going to whip him, but, after I learned that he had not gotten home, I knew that something bad had happened. I couldn't sleep any more, for I felt sure that Mr. Thackston had been killed, but I sat around the fire until about 3 o'clock a. m., when I thought that I would go out and see what had happened, so I went away from my house, going through Mr. Hester's yard, and there was no one up, and I went right on through the yard, and went to the railroad tracks just where it was understood that Mr. Jerry Hester was to be hid, and then I went on up the railroad tracks toward Frank Morris's house, and a short distance up the railroad tracks I found blood there. I then knew what had happened, and in place of these men whipping Mr. Thackston, as had been agreed, they had killed him, and my heart sank to my toes, but, in order to make sure that these men had killed him, I went on to Frank Morris's house to learn further, and when I got there I was told that they had found him on the railroad tracks dead. All that I knew to be in the gang was Charlie Hester, Jerry Hester, and Claude Hester, and, if there were any others, I did not know it, but I saw and recognized Jerry Hester and Charlie Hester as I came out of the store, for Jerry Hester put a gun on me, and told me to 'run,' and I did run, for all that was expected of me was to get Mr. Thackston back to the store where they could whip him. Charlie Hester was to do the whipping, for he did not like Mr. Thackston, for some time ago Mr. Thackston sat on a jury that convicted Charlie Hester for transporting whisky, and he and his father had always said that Mr. Thackston hung the jury on him. This is all that I know about the killing; and, when it was all planned, it was understood that after I got Mr. Thackston back to the store they were not to kill him, but to whip him, and I was not there when the killing took place, as I had done my part and ran home. After the killing of Mr. Ed Thackston, I had a conversation with Jerry Hester, and he asked me if I was ever going to tell this, and he told me that if I ever told it that they would kill me.

"Sometime before the killing of Mr. Ed Thackston, Mr. Jerry Hester was at my house, and he was making threats against Mr. Thackston, and he said that he would kill anybody who ever told that he had made threats, for some day he would kill Mr. Thackston.

"After Claude Hester was arrested, I had another conversation with Mr. Jerry Hester, and he told me that he did not know how much money Claude had on him when arrested, nor did he know how much he had.

" This statement is made of my own free will and accord, and I have not been promised, nor have I received, anything for the making of this confession, and there has been no duress or rough treatment given me; I have not been beat or threatened, but I make this confession free and voluntarily, of my own free will and accord."

The following is a portion of court's charge:

"Now, gentlemen, I want to talk to you just a little bit about confessions or alleged confessions, because I am not telling you that these defendants confessed anything in this case. There are certain situations sometimes confronting a man where it is his duty to speak. If he is charged with a crime, the law says that he cannot stand up and keep his mouth shut, but it must be under such circumstances that it would be his duty to speak and deny the charge. Now, I am going to read you, in order to get it clear in your mind, an extract from one of these reports here-it is not very long-which sets out probably clearer than anything I could say to you, and in passing on this, gentlemen, you have got to take into consideration all the circumstances surrounding the man at the time that the charge is made against him. He might be in such a situation that he might say, 'Well it is no use for me to say anything,' and again he might be in such a situation that the law says you must deny it if you are not guilty. Now, I want you to pay strict attention to this, because it is an important matter. The rule on the subject of acquiescence in the statement made by another implied by his silence, is thus stated in 1 Greenleaf, § 197: 'Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And, whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or

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