State v. Hilton

• Citation: 69 S.E. 1077,87 S.C. 434
• Parties: STATE v. HILTON.
• Decision Date: 20 January 1911
• Court: South Carolina Supreme Court

69 S.E. 1077

87 S.C. 434

STATE v. HILTON.

Supreme Court of South Carolina

January 20, 1911

Appeal from Common Pleas Circuit Court of Chester County; J. W. De Vore, Judge.

Otis Hilton was convicted of murder, and he appeals. Appeal dismissed.

The defendant appeals on the following exceptions:

1. Error of his honor in refusing to stand aside the juror, W H. Lathan, when examined upon his voir dire; this juror was not indifferent, as he was related by blood within the sixth degree to J. M. Lathan and S. R. Lathan, the state's two prosecuting witnesses, and employers of the deceased, and the defendant was prejudiced by the refusal of his honor to stand aside this juror.

2. Error in permitting the Solicitor on cross-examination, over the objection of the defendant, to ask the defendant the questions: "On December 3, 1907, were you not up for carrying pistols?" "On January 6, 1908, weren't you fined for carrying pistols?" "How, many times have you been up already for violating law? Count them up please?" "Haven't you been up in this community as many as 10 times?" "How many times were you up in Rock Hill?" "Well, what were all the different offenses you have been up for?" "How long since you started out on the line you have been pursuing?" And in compelling the defendant to answer these questions against objection, and in permitting the Solicitor on cross-examination of the defendant against objection to prove his former difficulties, arrest, and convictions; the error being that such questions were a direct attack upon the character of the defendant, which had not been put in evidence by the defense, such questions did not impeach his veracity, as a witness, as his former offenses were not of the class known as crimen falsi, such questions were in violation of the constitutional rights of the defendant under section 17, art. 1, of the Constitution of 1895, providing that no person shall be compelled in any criminal case to be a witness against himself, and are also in violation of the Constitution of the United States, article 5 of the amendments thereto, which provides: "Nor shall any person be compelled in any criminal case to be a witness against himself." Such questions were not impeaching his general reputation for veracity, but were an attack upon his character and were proving details of former offenses for which he was then not on trial, were an attack upon the presumption of innocence of the defendant in the case at bar were irrelevant to the issue, and incompetent and greatly prejudicial to the defendant.

3. Error in permitting the Solicitor, over objection of the defendant, and error in the Solicitor continuing to argue to the jury that the defendant's attorneys were present at the inquest over the dead body of John Beaty, saw the bullet holes in the body, saw the clothes, and saw the body disrobed. Such statements of counsel were outside of the record, were incorrect, were prejudicial to the defendant for the reason that the theory of the defense was that the deceased was armed with a knife at the time of the fatal encounter, and the state had offered no testimony contradicting this fact and such argument was a complete surprise to the defense and made too late for the defense to reply to it in argument, or otherwise, and was unfair to the defendant, for the reason that it robbed the defendant of any plea of self-defense if he shot an unarmed man, although the defendant had testified that the deceased renewed the threat to kill him, coupled with overt acts.

4. Because the solicitor argued to the jury that they must convict the defendant to prevent a repetition of his offenses and appealed to the jury to convict by referring to the lynching of another white man who had unjustly killed a negro and been improperly acquitted, and again unjustly killed a negro and been improperly acquitted, and after these two acquittals had unjustly killed a white man and was lynched by the men of his town, and thus brought shame and disgrace and scandal upon his town and its citizens, and that to this day the citizens of that town were carrying pistols for one another, and that several killings and bloodshed had resulted therefrom. Such statements of the Solicitor were entirely outside of the record, and it was the duty of the court of its own motion to check such departure from the record and the abuse of the privilege of argument by the state, against the objection of the defendant and against the rights of the defendant to a fair and impartial trial greatly prejudiced his case, made him suffer for the misdeeds of another, caused the jury to believe that they must avenge the outrages of the lynching case by convicting the defendant, and produced in their minds and upon them the impression that the defendant would involve the community in which he lives in similar tragedies unless convicted. Such an appeal by the prosecuting officer of the state, whose duty it is to do justice both to the state and to the defendant, was an overzealous act on his part, and the Solicitor showed a disposition to refuse to amend the severity of his remarks after counsel objected to his line of argument in reference to the examination of the dead body. The court should have corrected the Solicitor or charged the jury to disregard such remarks, and the record shows an...