State v. Howard

• Decision Date: 01 February 1892
• Citation: 14 S.E. 481,35 S.C. 197
• Parties: STATE v. HOWARD et al.
• Court: South Carolina Supreme Court

14 S.E. 481

35 S.C. 197

STATE v. HOWARD et al.

Supreme Court of South Carolina

February 1, 1892

Appeal from general sessions circuit court of Greenville county IZLAR, Judge.

Indictment for murder against William L. Howard, William M. Howard, and William H. Moore. The defendant William L. Howard was convicted, and brings this appeal. The other defendants were acquitted. Judgment reversed.

A. H Dean, William A. Williams, and Sherman & Mayfield, for appellant.

M. F Ansel, for the State.

POPE J.

At a term of the court of general sessions for Greenville county in July, 1890, the three defendants were tried upon an indictment charging William L. Howard and William M. Howard with the murder of Benjamin Ross, and William H. Moore with being accessory before the fact to said murder. The defendants William M. Howard and William H. Moore were acquitted, and the defendant William L. Howard was convicted of murder, and the sentence of death duly pronounced. William L. Howard now comes to this court, and asks that the judgment of the court below shall be reversed, and for cause exhibits eight grounds of error. We will examine them separately.

His first ground of appeal: "Because his honor, the presiding judge, erred in holding that the defendant William L. Howard must cross-examine the witnesses for the state in advance of the cross-examination of said witnesses by the defendants William M. Howard and William H. Moore." In the outset of the investigation of this alleged error on the part of the circuit judge, it may be stated that there is no statute law in this state for the regulation of trials where two or more defendants are jointly tried. It must be apparent that there should be some power to control the details of trials; and it would seem that the presiding judge in the court below, by reason of his exalted position and entire freedom from bias or prejudice, should be that power. While this precise point has not been presented to this court for determination, yet quite a number of cases similar in spirit and scope have been decided; and uniformly this court has held that the matters of detail of trials in both the courts of general sessions and common pleas should be confided to the wise discretion of the circuit judge. See the cases of Mathews v. Heyward, 2 S. C. 239; Cantey v. Whitaker, 17 S.C. 527; State v. May, 33 S.C. 44, 11 S.E. Rep. 440. We must, therefore, overrule this ground of exception.

The second ground of appeal is: "Because his honor erred in holding that the defendant William L. Howard must put up the witnesses for his defense in advance of the witnesses for the said defendants William M. Howard and William H. Moore." We must overrule this ground of exception upon the very line of thought presented in the consideration of the first ground of appeal herein.

Defendant's third ground of appeal is: "Because his honor erred in holding that the defendant William L. Howard could not, on the cross-examination of Abraham Pittman and Anderson Pittman, witnesses for the state, contradict Thomas Rochester, a witness who had been previously examined on behalf of the prosecution; the said William L. Howard having on the cross-examination of this witness so previously examined, laid the foundation for such contradiction." This question has received of this court very careful examination. Cases in our courts of last resort have settled the right of a full cross-examination of adverse witnesses. Our own court, in Kibler v. McIlwain, 16 S.C. 556, say: "This question, strange to say, does not seem to have been distinctly decided in this state, though in the case of Clinton v. McKenzie, 5 Strob. 41, it seems to be assumed that the rule is different here from that established by the supreme court of the United States, and that here a witness may on his cross-examination be interrogated as to any fact pertinent to the case, 'whether the examination be directed to qualify, neutralize, or discredit the testimony which the witness may have given in his examination in chief, or to lay the foundation for his defense in any new matter in the knowledge of the witness;' and this, so far as we have been able to learn, is the rule that has very generally prevailed in this state. It is conceded by Greenleaf, in the section above cited, that this is the rule in England; and there counsel, in the cross-examination of a witness, are permitted to ask questions bearing upon the whole case, so as to bring out matters of independent defense, and are not confined to the matters testified to in the examination in chief. *** We think, also, that this rule has the support of reason as well as of authority." And the authority of this deliberate decision has not since been questioned by this court, and of course all other courts in this state are bound to observe it. It will be found by examination that this question was thoroughly considered by this court in the case of State v. McNinch, 12 S.C. 89, where it is said: "The power of cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests which the law has devised for the discovery of truth." So that when the circuit judge denied the defendant the right to cross-examine the state's witnesses fully and freely,--and especially on the matter embraced in the exception,--he was in error. But it is contended that this error was obviated or cured by the defendant's having caused the two witnesses in question to be examined on his own behalf. It is needless to protract this inquiry on this particular point; for this court has in at least three instances, in the last decade, directly and unequivocally decided that this error is not so removed. In the case of State v. McNinch, supra, in 1879, it was so held. Then, too, in Dillard v. Samuels, 25 S.C. 319, and in Willoughby v. Railroad Co., (S. C.) 11 S.E. Rep. 339, the court emphasized this rule. Too much care cannot be observed by prosecuting officers in adhering to the requirements of the law in these particulars; for, no matter how strong the proofs of guilt may be made yet, when it is in the...