State v. Jernigan
| Decision Date | 31 May 1930 |
| Citation | 153 S.E. 480,156 S.C. 509 |
| Parties | STATE v. JERNIGAN et al. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Horry County; C. C Featherstone, Judge.
Robert Jernigan and D. B. Marlowe were convicted of assault and battery with intent to kill, and they appeal.
Affirmed.
Ford & Suggs, of Conway, for appellants.
L. M Gasque, Sol., of Marion, for the State.
The defendants, Robert Jernigan and D. B. Marlowe, were tried and convicted at the March, 1928, term of court of general sessions for Horry county, before his honor, Judge C. C Featherstone, and a jury, under an indictment charging them with assault and battery with intent to kill. From the sentence and judgment of the court the defendants have appealed to this court, imputing error to the trial judge in the particulars set forth under 34 exceptions, many of which contain a number of subdivisions.
The difficulty out of which the indictment arose took place in Horry county, about 9 o'clock at night, on or about November 12, 1927, in the road, near the home of the defendant Marlowe. The testimony on the part of the state, as given by Duck Causey, the prosecuting witness, tends to show that on the night of the date named, November 12, 1927, he was traveling in his automobile, going to his home, and soon after passing the home of the defendant Marlowe, on said road, about fifteen yards beyond the house, as he slowed up the speed of his automobile for the purpose of descending a rough hill, he was attacked by the defendants, who jumped upon the running board of his car, pulled the switch key out, which caused the car to stop, and proceeded to cut him with knives, each of the defendants engaging in the cutting, and inflicted upon him, the prosecuting witness, very severe wounds. According to the version of the affair by Duck Causey, the prosecuting witness, he was wholly without fault and was attacked without warning and not given an opportunity to defend himself. It further appears from the statement of Causey that one Sam Jernigan came to the car and called to the defendant Robert Jernigan not to cut him (Causey) any more; that he had cut him enough. Also, that, after the defendants had ceased cutting him (Causey), they ordered him to get out of his car, saying they were going to take it, and he got out, walked to the home of Sylvester Causey, who helped him to get a physican. The prosecuting witness also testified that the defendants had a shotgun at the time they made the attack upon him.
According to the testimony of the defendant Marlowe on the night in question, he was at home with his family; that his family consisted of his wife and several children, some of his daughters being about grown, and they, together with some other young folks who had assembled there, were having some music; that the prosecuting witness, Duck Causey, drove up in front of his house in an automobile and stopped; that at the time this defendant was in the room with his wife, and because of the noise outside, at the request of his wife, went out to investigate, and by the use of his searchlight recognized Duck Causey in his automobile, who asked this defendant if the Jernigan boys were there, having reference to the defendant Robert Jernigan and his brother, Sam; that about that time the defendant Robert Jernigan walked out and Causey knocked him down by striking him a heavy blow upon the head with an automobile jack; that Causey ran off leaving his car behind; that he (this defendant Marlowe) did not see any one cut Causey and did not know Causey had been cut.
The defendant Jernigan testified to the same effect as the defendant Marlowe, except he claimed to have done all the cutting to Causey, and that Causey was mad with the Jernigan boys on account of trouble they had had with Causey's brother. It was also the contention of the defendants that Causey was drinking.
The transcript contains a mass of testimony adduced at the trial, but the above statement is sufficient to give a clear conception of the contention of the parties.
We will consider the exceptions in their order.
Exception 1.
--"the error being that the Court permitted the asking of questions which were leading and to ask by indirection questions charging the defendants with another crime under the law."
When the testimony quoted in this exception is considered in connection with the other testimony, it will be seen that the purpose of the same was to ascertain if the contention of the defendants was true, that is, the contention that at the time of the difficulty Causey, the prosecuting witness, had whisky in his automobile and was under the influence of whisky. Even if the purpose of the testimony had been to ascertain if the defendants at the time of the difficulty were under the influence of whisky, it would have been competent. We do not think the questions propounded by the solicitor could be construed as charging the defendants with unlawfully handling contraband whisky, as appellants seem to think. In our opinion the trial judge committed no error in overruling the objection to the testimony.
Exception 2.
That the court erred, it is respectfully submitted, in allowing the following questions and testimony by the solicitor of Lonnie Causey, a witness for the state, to wit:
--"the error being that the questions were leading and charged the defendants with the commission of another violation of law not charged in the indictment of this case."
There was no error in allowing this testimony. It was competent for the purpose of showing the frame of mind and general condition of the defendants at the time of the difficulty in question. It was not objectionable on the ground that the questions were leading, and the position of appellants that the defendants were being charged with a violation of law other than that charged in the indictment is not well taken.
Exception 3.
The error charged under this exception is the refusal of the trial judge to strike out, on defendants' motion, the testimony complained of under exception 2. The exception is overruled for the reasons stated in our discussion of exception 2.
Exception 4.
In appellants' fourth exception error is charged to the trial judge because of his refusal to allow the witness, N. A. Shelly, a witness for the state, to answer the following question on cross-examination:
"Do you know of him ever having been in anything of this kind?"
Counsel in asking this question had reference to Causey, the prosecuting witness. It was in order to attack the general reputation of Causey for peace and good order, but, as the trial judge ruled, it was not proper under the rule to go into specific acts of violence, unless the same were committed along about the time in question.
Exception 5.
Under this exception appellants complain because the solicitor interrupted their counsel while propounding a question for the purpose of stating the rule in offering proof for truth and veracity. In our opinion there is no merit in this exception.
Exception 6.
In this exception error is charged to the trial judge on account of permitting the solicitor to ask leading questions, repeating the questions and attacking the reputation of the defendants without their reputation being put in issue. The record does not disclose that counsel for the defendants interposed any objection on the ground that the solicitor asked leading questions in connection with the testimony complained of or because the solicitor repeated questions. At the time counsel for defendants simply remarked, "That does not bring him within the rule." If counsel had, at the time, interposed objection upon the ground that appellants now complain of, the trial judge would, no doubt, have instructed the solicitor not to ask his witness leading questions, and to avoid repeating questions unless it was necessary. Sometimes it is necessary to repeat questions in the examination of a witness. Such matters must necessarily be left largely to the good judgment of the presiding judge, and appellants, in our opinion, have no just ground for complaint in this instance. The reputation of the prosecuting witness, Causey, had been attacked, and the solicitor was meeting that attack. The testimony solicited by the solicitor was directed to the reputation of Causey, the prosecuting witness. Only one sentence asked at the time complained of had any reference to the defendants, which was as follows:
We fail to see in what way the defendants were prejudiced by this question. Furthermore, no objection to the question was interposed.
Exception 7.
That it was prejudicial error, it is respectfully submitted, for the court to refuse to allow the witness, N. A. Sholly, to answer on...
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State v. Reese
...unless there is an abuse of discretion. State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996); State v. Jernigan, 156 S.C. 509, 524, 153 S.E. 480, 486 (1930). An abuse of discretion occurs when the trial court's ruling is based on an error of law. State v. Foster, 354 S.C. 614, 6......