State v. Johnson

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WOODS
• Citation: 66 S.C. 23,44 S.E. 58
• Parties: STATE. v. JOHNSON.
• Decision Date: 08 April 1903

44 S.E. 58
66 S.C. 23

STATE.
v.
JOHNSON.

Supreme Court of South Carolina.

April 8, 1903.

CRIMINAL LAW—OBJECTIONS TO JURY—WAIVER—HOMICIDE—EVIDENCE—EXPERT TESTIMONY—INSTRUCTIONS.

1. Objections to the manner of drawing the jury, made after verdict, will not be considered unless accused was injured thereby.

2. Where, on a trial for murder, the action and flow of a river was a question, to ask the witness whether, in his personal experience, he had ever witnessed the floating of any person or any bale of cotton down the main sluice of the river, and, if so, whether it followed the sluice, or was blown off to the Georgia shore, was not objectionable, as leading.

3. The admission of cumulative evidence in reply in a criminal case is within the discretion of the court.

4. Evidence of a physician, based on the examination of a wound, is admissible as expert testimony.

[44 S.E. 59]

5. That the judge, in his charge to the jury, stated facts agreed on by witnesses for the state and for the accused, was not error.

6. Under the Constitution of 1868, forbidding the court to charge the jury as to matters of fact, a statement of the issues presented, and all the evidence on which the state and the defendant relied to support their respective positions, is authorized.

7. An instruction that circumstantial evidence should be received and considered as other evidence is not a charge on the facts.

8. The jury in a criminal case must consider expert evidence in the same manner as other evidence, and give it such weight as they think fit.

¶ 8. See Criminal Law, vol. 14, Cent. Dig. § 1081.

Appeal from General Sessions Circuit Court of Edgefield County.

Tom Johnson was convicted of murder, and appeals. Reversed.

Defendant appeals on the following exceptions:

"(1) Because his honor the presiding judge erred in not arresting the judgment and granting a new trial to the defendant when it appeared that the defendant was convicted by a jury not drawn according to law: First. The sheriff was, contrary to law, allowed to draw the names of jurors from the jury box, and had in his possession the treasurer's key, and acted as jury commissioner as a substitute for the treasurer; thus acting in the capacity of jury commissioner and sheriff, who should be present simply as a witness. Second. The jury commissioners, contrary to law, passed upon the competency of the jurors, and illegally destroyed the ballots containing the names of those jurors deemed incompetent, regardless of whether they were exempt by law or not; and his honor ruled that the jury, as drawn, was a legal jury.

"(2) Because his honor erred in overruling defendant's objection, and allowing T. Hitt to answer the following question propounded by the solicitor: 'Q. Have you seen anything much of Tom Johnson prior to the 21st of September of this year?' Said question being irrelevant and incompetent.

"(3) Because his honor erred in overruling defendant's objection, and allowing John R. Blackwell to answer the following question propounded to him by the solicitor: 'Q. The day when the body was found, any white people there?' The effort of the solicitor being to show that the white people were more interested in connecting Robert Park's death with Tom Johnson than were the black people.

"(4) Because his honor erred in overruling defendant's objection, and allowing Dan Parks to answer 'Yes' or 'No' to the following question; he having answered same on direct examination: 'Q. Tom Johnson testified that he didn't tell you that your son told him it was twenty-five minutes after 4, and that he had a good silver watch on?'

"(5) Because his honor erred in overruling defendant's objection, and allowing John R. Blackwell to answer on redirect examination question propounded by solicitor: 'Q. What particular experience have you had in carrying anything on the water?'

"(6) Because his honor erred in overruling defendant's objection, and allowing L. G. Harmon to answer on his redirect examination question propounded by solicitor: 'Q. Have you, in your personal experience, ever witnessed the floating of any person or any bale of cotton down the main sluice of that river; and, if so, did it follow the sluice, or was it blown off to the Georgia side; and, if you witnessed such an occurrence, was the wind blowing at the time, or not?' Because his honor erred in overruling defendant's objection, and allowing L. G. Harmon to answer on the redirect examination question propounded by the solicitor—to say 'that he heard some one holler in the river, and saw the men; was attracted by the hollering.'

"(7) Because his honor the circuit judge erred in permitting Dr. Bell to testify that it would be impossible for a body in water to have received such a wound as that appearing on the face of the deceased. Such evidence not being expert evidence, but the opinion of a witness giving his conclusion upon what were alleged to be the facts in the case on trial.

"(8) Because the presiding judge erred in defining manslaughter to the jury as follows: 'Manslaughter is the killing in sudden heat and passion, upon sufficient legal provocation, and without malice.' A definition of self-defense, and not manslaughter, and that definition the judge repeated in his charge.

"(9) Because his honor erred in charging the jury: 'The question for you in this case, at the threshold of your examination, is, was Robert Parks, the deceased, murdered, or did he come to his death by drowning, or by some other accident?' Thus taking from the jury the right to say what questions were before them to consider, and whether the homicide was manslaughter.

"(10) Because his honor erred in commenting on the facts, contrary to article 4, and section 26 of the Constitution of South Carolina, by stating to the jury: 'There is no doubt of its being dead. There is no doubt it was found dead at some point in the Savannah river. There seems to be no doubt that Robert Parks died, from some cause or other, in the river.' These being facts for the jury to decide, free from the suggestions and opinion of the...