State v. Kennedy

• Decision Date: 09 February 1928
• Docket Number: 12372.
• Parties: STATE v. KENNEDY.
• Court: South Carolina Supreme Court

141 S.E. 559

143 S.C. 318

STATE v. KENNEDY.

No. 12372.

Supreme Court of South Carolina

February 9, 1928

Appeal from General Sessions Circuit Court of Oconee County; Wm. M Grimball, Judge.

J. F Kennedy was convicted of assault and battery of a high and aggravated nature, and he appeals. Affirmed.

Herndon & Thompson, of Walhalla, for appellant.

Leon W Harris, Sol., of Anderson, for the State.

STABLER J.

Upon an indictment charging him with assault and battery with intent to kill one W. L. Smith, the defendant, Kennedy, was tried at the November, 1926, term of court of general sessions for Oconee county, and found guilty of assault and battery of a high and aggravated nature. He appeals and imputes error to the trial judge in the following particulars: (1) In the admission of certain testimony; (2) in permitting the solicitor, when cross-examining the defendant, to reflect, by insinuation, upon the defendant's veracity; (3) in charging upon the facts in violation of the Constitution (article 5, § 26); and (4) in refusing to charge the defendant's second request, and in failing to declare the law applicable to the case.

Kennedy as the record discloses, was assistant overseer in the weaving department of a cotton mill of the Courtenay Manufacturing Company at Newry, S. C.; Smith, who was under Kennedy, was employed as a weaver in that department. As assistant overseer, it was Kennedy's duty to mark up and give credit to the weavers for the work done, and to speak to any employee under him regarding any loss of time, and to report him for any such delinquency. The testimony tends to show that, prior to the difficulty between Kennedy and Smith, Smith had been tardy several times in reporting for work, and that Kennedy, in the line of his duty, spoke to him about it, which Smith apparently resented. Kennedy finally reported the matter to Mattison, the overseer in charge of the weave room, who was over both Kennedy and Smith. Mattison, as he says, in order to adjust the matter, called Smith and Kennedy into the tower room for a conference. After some conversation between Mattison and Smith, in which it is claimed Smith applied a vile epithet to Mattison and Kennedy, a fight ensued, resulting in Smith being severely cut with a knife, for which Kennedy was indicted, tried, and convicted.

On trial of the case, when Smith was on the stand, the solicitor asked him whether there had not been some differences between him and Kennedy prior to the final difficulty. He replied that there had been. On cross-examination of Smith, appellant's counsel went into details of these previous differences and brought out testimony as to what Smith said to Kennedy on these occasions, whether he had been tardy or not, etc., and whether these certain things had led up to the difficulty or were the cause of it. On redirect examination of Smith, the court, over the appellant's objection, allowed the solicitor to question the witness along the same lines, especially with regard to the marking short by the defendant of cloth woven by Smith and to the manner in which Kennedy had performed his work in the mill. These questions and the answers thereto are made the basis of the first ground of imputed error.

The appellant contends that in admitting this testimony the court committed reversible error, in that it allowed the witness to give details of a transaction with a third person and to refer to the conduct of a person other than the defendant, the only purpose of the examination by defendant's counsel of the prosecuting witness having been to prove hostile declarations and threats by him against the defendant, which was competent to be done.

It is true, as contended by the appellant, that while the admission of testimony showing the fact of a previous difficulty is proper, the details of any such difficulty are inadmissible in evidence. State v. Williams, 125 S.C. 385, 118 S.E. 783; State v. Evans, 112 S.C. 43, 99 S.E. 751; State v. Adams, 68 S.C. 421, 47 S.E. 676; State v. Abercrombie, 130 S.C. 358, 126 S.E. 142.

But in the present case the appellant himself first elicited testimony as to details of previous difficulties. Whatever may have been the moving purpose of appellant's counsel in his examination of Smith with regard to former difficulties between Smith and Kennedy, the scope and method of such examination resulted in more than the mere showing of the mental attitude of the parties or of hostile declarations and threats made by the witness against Kennedy. Counsel went into details of previous difficulties between the two men asking the witness questions which clearly implied that Smith was the wrongdoer in those difficulties. The testimony then brought out by the solicitor on redirect examination was along the same line, tended to combat the...