State v. Holmes

• Decision Date: 27 October 1933
• Docket Number: 13705.
• Parties: STATE v. HOLMES.
• Court: South Carolina Supreme Court

171 S.E. 440

171 S.C. 8

STATE v. HOLMES.

No. 13705.

Supreme Court of South Carolina

October 27, 1933

Appeal from General Sessions Circuit Court of Sumter County; Philip H. Stoll, Judge.

James Holmes was convicted of murder, and he appeals.

Affirmed.

C. M Edmunds and L. D. Jennings, both of Sumter, for appellant.

Frank A. McLeod, of Sumter, for the State.

BLEASE Chief Justice.

James Holmes, Willie Evans, and Esther Robinson, all colored, were indicted and tried together, in the court of general sessions for Sumter county, for the crime of murder, growing out of the alleged killing by the defendants of Nora Franklin, by strangulation.

The defendant, Holmes, was usually called "Donnie" Holmes; Evans very often went by the name of "Mottie" Evans; and the woman, Esther Robinson bore the nickname of "Queenie."

Neither of the defendants engaged counsel. The court assigned counsel for each of them. L. D. Jennings, Esq., and C. M. Edmunds Esq., appeared for Holmes; W. M. Levi, Esq., and George D. Levy, Esq., represented Evans; and Messrs. Epps & Epps defended Esther Robinson. The record discloses clearly and fully that all these attorneys, who received no compensation for their services, ably and efficiently performed their duties, and endeavored at every stage of the trial to see that their respective clients received the fair and impartial trial guaranteed to them by the Constitution of this state and of the United States.

Under the theory of the state, all of the defendants were principals in the murder, it being claimed that all of them were present at the time of the alleged homicide, and participated therein. And the prosecution sought to show that the motive for the crime was to enable Holmes to collect $125 on account of an insurance policy on the life of the deceased, wherein Holmes, her nephew, was named as the beneficiary. Alleged oral statements, in the nature of confessions, on the part of all three of the defendants were introduced by the state.

Each of the defendants pleaded not guilty. All of them testified in the trial. Willie Evans and Esther Robinson gave damaging testimony against their codefendant, Holmes.

The result of the trial, before his honor, Judge Stoll, and a jury, was the acquittal of Esther Robinson; a verdict of guilty of murder with recommendation to mercy as to Willie Evans, and his sentence to life imprisonment; and a verdict of guilty of murder as to James Holmes, and his sentence to death by electrocution.

The appeal to this court is on the part of James Holmes alone. Since he was not financially able to have printed the record in the case, on motion of his counsel, this court has permitted typewritten records to be presented, and has acceded to the request that the appellant be not held to a strict compliance with the rules of the court.

The appellant has presented four exceptions. The first, second, and third of these relate to the admission of testimony. The fourth challenges certain instructions of the trial judge to the jury. Since the complaint as to the charge has some bearing upon the correctness of the rulings as to the admission of the testimony, which the appellant says was erroneously received, we consider first the fourth exception.

In the main charge, before the jury were directed to retire for the purpose of the consideration of the case, the circuit judge gave them the following instructions: "Now, I charge you, where two or more persons are being tried for the same offense, they are known as what we call co-defendants, and if one of them takes the stand, which he has a right under the law to do, to testify, he can testify only to such things as relate to the case under trial. But if his testimony relates to one of his co-defendants, you cannot consider the testimony as against them. You only consider it as against the defendant who is testifying. For instance, Mr. Foreman, A, B and C are tried together. A takes the stand and admits his part, and says things that incriminate himself, and also incriminate B and C, the jury could consider it as to A, but could not consider it as to B and C, because they are co-defendants."

Near the conclusion of the charge, Mr. R. D. Epps, of counsel for Esther Robinson, took the position that the charge as to the testimony of codefendants, above quoted, was erroneous. After some argument of the law on the subject, the presiding judge decided to let the instructions stand as they had been given. Mr. Jennings, of counsel for the appellant, then announced that he agreed with the position taken by Mr. Epps. After the jury had retired, Mr. Epps presented to the judge some authorities which he thought sustained his position, apparently being among them the case of State v. Blue, 118 S.C. 127, 110 S.E. 111. The jury, desiring to have some of the testimony in the case read to them, were brought into the courtroom. After the reading of that testimony, the trial judge charged them further as follows: "Mr. Foreman and Gentlemen, before you retire, after thinking over the matter, I am afraid I committed an error in my general charge to you relative to the testimony of the defendants. I want to strike out that part where I stated testimony of the defendants could not be considered as evidence against a co-defendant, and I instruct you this, that the testimony of the defendants--you are to be the judges of the credibility of the defendants as any other witnesses and you are the sole judges of what weight you give to the testimony of the defendants, as you are the judges of the weight you give the testimony of any other witness. I think that makes it clear what I am trying to correct. You may retire if that is all you want."

The appellant now says that the instructions first quoted were erroneous. He says, also, that the last instructions did not correct the previous error, and that thereby the law on the subject was left "in a confused state," and that the effect of the instructions was a declaration that the testimony of a codefendant could not be considered for or against another codefendant, and he was prejudiced in his trial by the failure of the judge to adequately correct the error into which he had first fallen.

The instructions first given by the trial judge were erroneous. While there may have been an indication in the opinion of the court in the case of State v. Franks, 51 S.C. 259, 28 S.E. 908, that a defendant, in the trial of a criminal case, could not testify in behalf of a codefendant, jointly tried with him, it is entirely clear from the able opinion of Mr. Justice Hydrick, for this court, in the later case of State v. Kennedy, 85 S.C. 146, 67 E. E. 152, 155, that such is not now the law in this state. The court said in the Kennedy Case that the decision in the Franks Case "was rested upon other grounds" than the holding there indicated as to the testimony of a codefendant.

In the Kennedy Case, Mr. Justice Hydrick construed the effect of the provisions of section 64 of the Criminal Code of 1902 (now contained in section 1011 of the Code). The language of the statute is this: "In the trial of all criminal cases, the defendant shall be allowed to testify (if he desires to do so, and not otherwise) as to the facts and circumstances of the case." The distinguished jurist said: "The common-law doctrine [as to the testimony of co-defendants] has been abrogated by statute in this state." He further said: "Under the terms of the statute, any of a number of defendants jointly indicted and jointly tried would have the right 'to testify as to the facts and circumstances of the case,' and the language of the statute does not certainly in express terms limit his competency to testify only in his own behalf. We think the intention of the Legislature was to remove the common-law disability of incompetency of defendants in criminal cases by reason of being parties to the record, or of being interested in the result, and put them upon the same footing as other witnesses. Hence it has been held that, when a defendant goes upon the witness stand, he 'thereby subjects himself to all the incidents of a regular witness, and his general reputation for veracity may be impeached; that he is subject to the usual duties, liabilities, and limitations of witnesses.' State v. Peterson, supra [35 S.C. 279, 14 S.E. 617]."

While the Kennedy Case was not expressly referred to in the later case of State v. Cooler, 112 S.C. 95, 98 S.E. 845 846, it is evident the principles announced by Mr. Justice Hydrick in the former case were followed in the latter. In that case, Cooler and Davis were indicted and tried together for the crime of murder. In the appeal, Cooler complained of the...