State v. Jackson

• Decision Date: 07 January 1911
• Citation: 69 S.E. 883,87 S.C. 407
• Parties: STATE v. JACKSON.
• Court: South Carolina Supreme Court

69 S.E. 883

87 S.C. 407

STATE v. JACKSON.

Supreme Court of South Carolina

January 7, 1911

Appeal from Common Pleas Circuit Court of Sumter County; Thos. S Sease, Judge.

E. A Jackson was convicted of obtaining money by false pretenses and appeals. Affirmed.

J. B McLauchlin and J. H. Clifton, for appellant. Solicitor Stoll and L. D. Jennings, for the State. wOODS, J.

The defendant, E. A. Jackson, was convicted and sentenced under an indictment which charged that he, "devising and intending to cheat and defraud J. H. Cunningham, of his goods, moneys, chattels, and property, unlawfully, knowingly and designedly did falsely pretend that he, the said E. A. Jackson, then and there had a car of lumber containing nine thousand feet of two by ten by twenty-four lumber, of the value of eighty-six dollars, which said pretense the said E. A. Jackson then and there well knew to be false, by color and means of which said false pretenses and pretenses, he, the said E. A. Jackson, did then and there unlawfully, knowingly, and designedly obtain from the said J. H. Cunningham eighty-six dollars. ***" The record set out a number of grounds on which counsel for defendant demurred to the indictment; and the first exception assigns error in the refusal of the circuit court to sustain the demurrer. All these grounds except one are entirely nonrelevant to the indictment in this case for obtaining money under false pretense, and clearly refer to some other indictment against the defendant for the forgery of a bill of lading. For this reason any detailed statement or consideration of them would be entirely out of place here.

The only ground of demurrer which can be referred to this indictment is "that the defendant has not been indicted, and that there is no present indictment against Edward Arthur Jackson, and that nowhere in the indictment does it appear that the defendant in his own proper person and name has been indicted, or that he has committed any manner of offense." The general rule of the common law was that an indictment describing the defendant by his initials, instead of his full Christian name, was insufficient. But the rule is a very technical one; and so it was held in City Council v. King, 4 McCord, 487, that the initials would be sufficient if the defendant was in the habit of using only initials for his Christian name, and was known by them. No doubt the better practice is to write the full Christian name, but a judgment should not be reversed when only initials are used in a case like this where the record of the trial makes plain the identity of the accused.

The evidence offered in support of the charge in the indictment tended to prove that the defendant by falsely representing that he owned a car load of lumber and by turning over to J. H. Cunningham a forged bill of lading obtained from Cunningham a Check for $86, which upon presentation by the indorsee was paid by the bank on which it was drawn. There is no support whatever for the statement in the third exception that the circuit judge undertook to decide the issue of payment by saying in the course of the examination of the witness Yates: "I think that is enough. The check has been proved to have been paid." It was in sustaining an objection of defendant's counsel to a question of counsel for the estate that the court said: "I think that is enough." The record does not indicate that the court said anything as to the payment of the check.

The general allegation of prejudicial error in the participation of the circuit judge in the examination of the witnesses is thus set out in the fourth exception: "That his honor erred and prejudiced the case of the defendant, and intimated and conveyed to the jury his belief as to the facts by the examination and cross-examination of the witnesses Drs. Dwight, China, and Kirk and Saunders, and others for the defendant, in that such examination and cross-examination conveyed to the jury the opinion and belief of the trial judge as to the truthfulness of the statements made by the witnesses for the defendant, as to their correctness, and as to the weight the same should have received from the jury, and in that such examination did not bring out the testimony fairly and impartially, but, upon the contrary, brought it out unfairly and prejudicially to the defendant, as follows." Numerous questions and observations of the judge are then set out as indicating to the jury that the opinion of the judge was adverse to the defendant.

There can be no doubt of the right and the duty of the circuit judge to ask such questions of witnesses as seem necessary to elicit the evidence relevant to the decision of the issue on trial. Yet so great is the weight which a jury attaches to an intimation of opinion coming from one set apart to preside over the court because of his impartiality and capacity to decide justly, that the duty is ever present to a judge to guard against questions or remarks that may so influence the jury as to make the judge a participant in their findings of fact. This duty is imposed by the Constitution, and a departure from it tending to affect the decision by the jury of a material issue of fact must result in a new trial. Willis v. Telegraph Co., 73 S.C. 379, 53 S.E. 639; Latimer v. Electric Co., 81 S.C. 374, 62 S.E. 438; State v. Driggers, 84 S.C. 526, 66 S.E. 1042.

There are in the record two remarks of the circuit judge which seem on their face so near to the line of constitutional prohibition that they require attention. In the redirect examination of the witness George Saunders the following appears: "Q. I understood you to say that right and wrong would not seem to him like it would to a sane man? A. No, sir. Court: Would you say that it appeals to him as strong as to you or somebody else? Do you think he knows right from wrong? A. In some instances, I don't think the ehormity of these things appeals to him. Court In other words, he hasn't a high sense of honor as to them? A. I don't think he knows as much about them. I should think he knows-- Court: Do you mean to say all men are insane who are accused of crime? A. By no means. I say I don't think a sane man would do the things he is accused of. Court: Yet the penitentiary is full of them? A. I think so." There is apparent force in the argument that this was an intimation from the court that in the due administration of law men who had done just the things which were relied on here as showing that the defendant was insane had been sent to the penitentiary as sane men. But the argument fails in view of the fact that the witness himself had testified that the defendant in his opinion was sane according to the laws of this state; for he had testified to his belief that the defendant knew that the things he had done were wrong. The...