State v. Kennedy

• Decision Date: 05 March 1910
• Citation: 67 S.E. 152,85 S.C. 146
• Parties: STATE v. KENNEDY.
• Court: South Carolina Supreme Court

67 S.E. 152

85 S.C. 146

STATE v. KENNEDY.

Supreme Court of South Carolina

March 5, 1910

Appeal from General Sessions Circuit Court of Barnwell County; Thos S. Sease, Judge.

J Chester Kennedy was convicted of murder, and he appeals. Affirmed.

Messrs Charles Carroll Simms, C. A. Best, and J. E. Harley, for appellant.

HYDRICK J.

The first count of the indictment charged Quitman Johnson and Ferdinand Grubbs with the murder of W. Perry Ussery. The second and third counts charged appellant and Grubbs as accessories before and after the fact. Appellant alone was tried, and convicted on the second count.

Against appellant's objections, testimony was admitted tending to show that he had conspired with his codefendants to take the life of Marvin Holland, and that Ussery was shot by mistake for Holland. Appellant contends that this testimony was inadmissible, because the indictment charged him as accessory to the murder of Ussery, without alleging the intent to murder Holland, and the killing of the latter by mistake. The indictment alleged with sufficient certainty the crime actually committed. Nothing more was necessary. The motive or intent, unless the intent is an essential element of the crime charged, is only evidentiary matter, which need not be alleged in an indictment, but may nevertheless be proved as tending to establish the commission or the crime. In State v. Jenkins, 14 Rich. Law, 215, 225 (94 Am. Dec. 132), the court said: " The rules of criminal pleading do not require that in the description of the offense intended to be charged all the attending circumstances which happen to distinguish the particular instance from others of the same offense shall be set out in detail. Nor, although the fact of the prisoner's guilty connection with the act which consummated the offense must be averred, is it required that the circumstances which constitute the particular manner of such connection shall appear on the record? It is only necessary to state those facts which are in law essential to constitute the particular offense charged, as in this case, such as are legally essential to the crime of murder." And on page 227 of 14 Rich. Law (94 Am. Dec. 132): "When it is said in the books that besides the legal description of the offense the manner of the death must be stated with exactness, it is only meant that the particular mode of violence whereby the death was caused, whether by shooting, stabbing, beating, or striking, strangulation, poisoning, etc., must be set forth, and not that the manner of the prisoner's connection with the use of that violence shall appear on the record." In Smith's Case, 2 Strob. 77, 47 Am. Dec. 589, the defendant shot at Carter, who was on horseback, and declared that his intention was only to cause the horse to throw him. The shot killed a negro, who was unseen by the defendant. Held murder. The court said: "It is not denied that this question is the same as if he had killed Carter instead of the negro, for if one design to kill A., but by accident kills B., his crime is the same as if he had executed his intended purpose. It will be murder, or manslaughter, or self-defense, according to the circumstances. It is very clear that the intent with which an act is done very often gives character to the crime, but there is a legal conclusion drawn from the facts of the case, entirely independent of the intent of the party. Thus it is said in 2 Starkie, Ev. 950, that: 'Where the defense is that the death was occasioned by accident, the nature of the act which produced the death, and the real motive and intention of the prisoner are the proper subjects of evidence, but the conclusion as to the quality of the offense, as founded upon such facts, is a question of law."'

In the case at bar, the jury were charged: "If one intends to murder another and misses the intended victim, and kills a third person, a bystander, he would be just as guilty as if he had killed the man whom he meant to kill. The same is true of the law of accessory before the fact or after the fact." Appellant does not question the correctness of this statement of the law only in its application by the court to the case of an accessory, contending that the court "should have explained to the jury that said proposition could only apply to an accessory present at the homicide, and aiding and abetting its commission, and could not apply to one charged under section 635, Cr. Code, as in this case, with having hired or counseled the commission of the felony by a party committing the crime out of the presence of the alleged accessory." We are unable to see any reason for such a distinction. We think the proposition is equally applicable to the case of an accessory, in the legal sense of the word, as to the case of one who was present, aiding and abetting in the commission of a felony, who we may say in passing is not an accessory, but a principal. State v. Putman, 18 S.C. 175, 44 Am. Rep. 569.

In 3 Green. Ev. § 44, the law is thus stated: "If the party employed to commit a felony on one person perpetrates it by mistake upon another, the party counseling is accessory to the crime actually committed. The authorities are unanimous on the point. If the principal varies totally or substantially from the solicitation, and commits an entirely different crime--one which did not and could not have probably or naturally resulted from the effort to commit the crime incited --the person who incited him would not be accessory to the crime committed, but where, as in this case, the principal in attempting to commit the crime to which he was incited, by mistake, accident, or design commits another crime, the person inciting is accessory to the crime actually committed. The law transfers the original wicked intent to the result." The principals, Johnson and Grubbs, not being on trial, were admitted against appellant's objection as competent witnesses against him. Upon this question the authorities are in hopeless confusion. Some authorities hold that, where two or more are jointly indicted, one cannot be witness for or against the others, unless the defendant called as a witness has been finally discharged from the record, either by nolle prosequi, order of discharge, or by verdict of acquittal, or plea of guilt and sentence. 1 Green. Ev. § 363; 1 Enc. L. & P. 561. Others hold that, though jointly indicted, if they are separately tried, one may be a witness in behalf of another. While still others hold that where accomplices are jointly indicted, but separately tried, one may be called as a witness for the prosecution, though his own case has in no way been disposed of (1 Enc. L. & O. 569), where it is said this is the "better doctrine," and it seems to be supported by the greater weight of authority, though the reasons for some of these distinctions are not quite obvious. While we have found no case in our own reports directly in point, it is inferable from a number of them that this practice has prevailed to some extent in this state. State v. Anthony, 1 McCord, 285; State v. Alexander, 2 Mill, Const. 171; State v. Coppenburg, 2 Strob. 273; State v. James, 31 S.C. 218, 9 S.E. 844; Id., 34 S.C. 49, 12 S.E. 657. In a good many states the matter has been regulated by statute. The rule of exclusion grew out of the common-law doctrine that a party to the record or one interested in the result, with certain exceptions, which were ingrafted upon the rule from supposed necessity, was not competent as a witness, because of the temptation to perjury. But the tendency of modern legislation and judicial decisions has been to depart from the strictness of the common law, and to enlarge the scope of the competency of witnesses, leaving it to the intelligence of the more enlightened juries of the present day to pass upon the credibility of the witnesses, and decide what is true and what is false.

The common-law doctrine has been abrogated by statute in this state. Section 64, Cr. Code, provides: "In the trial of all criminal cases, the defendant shall be allowed to testify (if he desires to do so, and not otherwise) as to the facts and circumstances of the case." In State v Peterson, 35 S.C. 279, 14 S.E. 617, it was held that while one of two defendants jointly indicted and jointly tried might, notwithstanding his previous conviction of an infamous crime, testify in his own behalf, it did not remove the incompetency imposed upon him by the common law on account of his convictions as a witness against his codefendant, and that his testimony should go to the jury under instructions from the court that it...