State v. Hopkins

• Decision Date: 18 April 1881
• Docket Number: CASE No. 1023.
• Parties: STATE v. HOPKINS.
• Court: South Carolina Supreme Court

15 S.C. 153

STATE

v.HOPKINS.

CASE No. 1023.

Supreme Court of South Carolina.

Apr. 18th, 1881.

1. The statement of a juror on his voir dire in the hearing of the jury that “he had said he thought the prisoner was guilty and ought to be hung,” and the volunteered opinion of a witness for the state from the stand that he would not believe the prisoner on his oath, are no grounds for a new trial of one convicted of murder.

2. The prisoner was arraigned in open court, in the presence of the clerk, by one who had been appointed deputy clerk and was acting as such, although he had not formally complied with all the requisites of a legal appointment. Held, that the arraignment was valid.

3. While the law presumes malice from the mere fact of intentional killing, yet when all the facts are brought out, there is no room for presumption, and the state, who affirms the malice, must prove it. State v. Coleman, 6 S. C. 185, approved.

Before MACKEY, J., Chester, March, 1880.

Indictment against Scott Hopkins for murder. The case is fully stated in the opinion.

Messrs. S. P. Hamilton and J. J. Hemphill, for appellant.

Mr. Solicitor Gaston, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

The defendant, Hopkins, was indicted for the murder of James R. Stroud. C. C. Macoy was clerk of the court for the county of Chester, but the prisoner was arraigned and called upon to plead, and the jury were sworn and charged by G. W. Curtis, who was acting as deputy of the clerk, but, as it is alleged, without proper authority to perform these duties. Macoy had been clerk for more than one term. In May, 1876, he had appointed Curtis his deputy, but he had ceased to act as such. On March 8th, 1880, shortly before the trial of Hopkins, Macoy again appointed him deputy, and at the trial he acted as deputy clerk, although the written appointment made had not been communicated to him, approved by the judge, or recorded. Macoy, the clerk, was present, superintending the arraignment, which was conducted by Curtis, acting as deputy.

During the arraignment a juror, Lewis Burdett, was presented to the prisoner, and the solicitor had him to stand aside without peremptory challenge-the challenges allowed the state being exhausted. To this the prisoner objected, and the objection being overruled, he excepted. The juror was afterwards recalled and sworn by the prisoner.

J. F. Green, a juror, on his examination on his voir dire, said, in the presence of the panel, that he had said “Scott Hopkins was guilty, and ought to be hung.” The juror was excluded.

The facts, short and simple, were about as follows: Defendant went to Chester, to sell cotton. He sold to Gunhouse & Co. After the money had been placed upon the table for defendant, and he was in the act of putting it in his pocket, deceased, Stroud, came up and said: “You owe me $5.50, but I will take $5, and call it square;” and, retaining $5, moved towards the door. Defendant denied the debt, and protesting against deceased taking his money, caught him by the lower part of his vest. They then took hold of each other by the lapel of the coat. Deceased said twice, “let me loose;” and the second time he said this he struck defendant in the face, and about the same time the pistol was fired. The defendant claimed that the pistol was discharged from his pocket accidentally. The homicide occurred on the first Monday in March, 1880, and in a few days the prisoner was tried. The jury found a verdict of guilty. The prisoner's counsel moved for a new trial, and that being refused, he appeals to this court, upon the following exceptions:

“1. Because J. F. Green, one of the jurors of the panel, presented to the prisoner and examined upon his voir dire, if he had ‘expressed or formed any opinion as to the guilt or innocence of the prisoner at the bar,’ said, in presence of the whole panel of the jury, that ‘he had said Scott Hopkins was guilty, and ought to be hung.’

2. Because William McAlily, a witness examined in reply by the state, volunteered to say from the stand ‘that he would not believe Scott Hopkins on his oath,’ when the character of said Scott Hopkins for truth and veracity was never put in issue. And, as matter of law outside the motion for a new trial, the said Scott Hopkins makes the following exceptions:

1. Because the said Scott Hopkins was arraigned for trial by George W. Curtis, an unauthorized person, and not the clerk or deputy clerk of the court, but being, at the time of such araignment, the Probate judge of Chester county.

2. Because his Honor charged the jury as follows: That if they found that Scott Hopkins caused the death of the deceased by the use of a deadly weapon, that they might infer malice from that fact, when the situation of the parties, the shortness of time and the circumstances occurring at the time of the killing rebutted every presumption of malice, and the charge of his Honor tended to mislead the jury on that point.

3. Because, in the presentment of the juror, Lewis Burdett, the solicitor ordered the juror to stand aside without peremptory challenge or challenge for cause, which was objected to by accused and objection overruled by the court.”

The first two exceptions are not well taken. On being examined on his voir dire the juror, Green, stated, in emphatic terms, that he had formed and expressed an opinion, and, of course, he was excluded. The witness, McAlily, simply volunteered the statement that he would not believe Scott Hopkins on his oath.

The first exception as “to matter of law,” charges that the prisoner was arraigned for trial by George W. Curtis, an unauthorized person, and not the clerk of the court. The law does not indicate any particular person to conduct an arraignment, the purpose of which is simply “to take care that the prisoner do appear to be tried, and hold up his hand at the bar for the certainty of the person, and plead a sufficient plea to the...