State v. James, 19161

• Decision Date: 02 February 1971
• Docket Number: No. 19161,19161
• Citation: 255 S.C. 365,179 S.E.2d 41
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Emily Johnston JAMES, Appellant.

Page 41

179 S.E.2d 41

255 S.C. 365

The STATE, Respondent, v. Emily Johnston JAMES, Appellant.

No. 19161.

Supreme Court of South Carolina.

Feb. 2, 1971.

Felix L. Finley, Jr., Joseph W. Board, Pickens, for appellant.

Sol. B. O. Thomason, Jr., Greenville, and Asst. Atty. Gen. M. J. Bowen, Columbia, for respondent.

MOSS, Chief Justice.

Emily Johnston James, the appellant herein, was convicted at the 1969 September Term of the Court of General Sessions for Pickens County, under an indictment containing two counts, charging that on December 25, 1968, and January 2, 1969, she did administer to or cause to be taken by Clyde E. James, her husband, arsenic poison with intent to kill him, in violation of Section 16--56 of the 1962 Code of Laws.

It is the contention of the State that the appellant put arsenic poison in the food or coffee of her husband at a family Christmas dinner on the evening of December 25, 1968, and that she put arsenic in the fruit drink which she gave to her husband in the Pickens Hospital on January 2, 1969. It was necessary, in order to convict the appellant, for the State to prove ingestion of arsenic by Clyde James and the criminal agency of the appellant in administering such to him.

The State, in presenting its case in the court below sought to prove the ingestion of arsenic by Clyde James through the testimony of Doctors Mustian and Ludvigsen. These witnesses related that Clyde James was being treated at the Greenville General Hospital for polyneuritis, and during the course of his treatment a twenty-four hour urine collection was taken from him on or about February 11, 1969, and forwarded by mail to a laboratory located in the state of California for chemical analysis. They further testified that this analysis was completed on February 18, 1969, and a report thereof was sent to the Greenville General Hospital and there copied into Clyde James's hospital record. These doctors were permitted to testify, over the objection of the appellant on the ground that such testimony was hearsay, regarding the arsenic content found in the urine specimen taken from Clyde James, based solely upon the California laboratory report as it appeared in his record in the Greenville General Hospital. It was admitted by these physicians that they did not know the person or persons who had made the chemical analysis of the urine specimen, nor the method employed in determining the arsenic content thereof. They further admitted that such chemical analysis was not made under their supervision nor could they vouch for the validity of the report. In connection with the foregoing, we quote the following from the testimony of Dr. Mustian:

'Q. Dr. Mustian, do you know of your own knowledge that this man ever had any arsenic in him?

'A. I don't know he ingested any, no.

'Q. The only way you say he might have had some arsenic in him, or have any information you can give to this court--is the laboratory report from California?

'A. That's right.

'Q. You don't know who made that report?

'A. No.'

We have carefully examined the entire record in this case and apart from the testimony of the two doctors, which was based solely upon the California report as it appeared in the Greenville General Hospital record, there is no evidence that any arsenic was administered to or ingested by Clyde James.

At all appropriate stages of the trial, the appellant objected to the testimony of the two doctors as to the arsenic content found in the urine of Clyde James on the ground that such was hearsay. At the close of all the testimony a motion was made to strike from the record the testimony of these doctors as being hearsay and there being no competent evidence of the guilt of the appellant, her motion for a directed verdict of acquittal should have been granted. All of these motions were overruled and the appellant assigns error.

The question for determination by this court is whether the trial judge committed reversible error in permitting the two doctors to testify as to the arsenic content of the urine of Clyde James, when such was based solely upon a report of a chemical analysis made by a third party who was not called as a witness. The appellant asserts that the testimony was inadmissible under the hearsay rule and was prejudicial to her.

In Cooper Corporation v. Jeffcoat, 217 S.C. 489, 61 S.E.2d 53, this court said:

'Hearsay evidence is inadmissible according to the general rule. Various reasons have been assigned for requiring the exclusion of this kind of testimony. The real basis for the exclusion, however, appears to lie in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony. It is said that a statement by hearsay is one made without the sanction of an oath and without the declarant being under the responsibility to answer for the crime of perjury in making a willful falsification. This objection loses some of...