State v. King, 16651

• Decision Date: 25 July 1952
• Docket Number: No. 16651,16651
• Citation: 222 S.C. 108,71 S.E.2d 793
• Court: South Carolina Supreme Court
• Parties: STATE v. KING.

Page 793

71 S.E.2d 793

222 S.C. 108

STATE v. KING.

No. 16651.

Supreme Court of South Carolina.

July 25, 1952.

W. G. Finley, R. B. Hildebrand, York, for appellant.

Robert W. Hemphill, Sol., Chester, for respondent.

TAYLOR, Justice.

Appellant, William Hugh King, was tried and convicted of committing assault and battery with intent to kill upon his wife, Mildred C. King, at the September, 1951, term of General Sessions Court for York County, for which he was sentenced to serve a term of ten years imprisonment. He now appeals to this Court upon exceptions which present the questions for determination by this Court of whether or not:

1. The sentence of the court was excessive.

2. The sentence of the Court was illegal in that it violated the statutory and constitutional limitations on the sentence provided by law for the crime of assault and battery with intent to kill.

3. His Honor erred in refusing to permit counsel for the defendant to examine Dr. Otha Dunlap, the defendant's personal physician and an admitted medical expert, as to facts peculiarly and particularly within his own knowledge as to the effects of BC headache powders and like preparations on the physical and mental condition of the defendant and as to the instructions the said doctor afterwards gave him with reference to the use thereof.

4. His Honor erred in refusing to permit defendant's counsel to propound Dr. Dunlap as a medical expert, whose qualifications were admitted, hypothetical questions as to the effect of the use of alcohol and BC or similar headache or medical preparations in combination upon the mental faculties of the person so using them.

5. His Honor erred in admitting in evidence large and gruesome pictures showing great quantities of blood upon the bed, bed clothes, the four (4) walls and other parts of the room wherein the alleged assault occurred when numbers of witnesses had testified thereto and described same in minutest detail, the effect of introduction of such gruesome pictures being solely to prejudice and inflame the minds of the jury against the defendant.

6. His Honor erred in permitting the introduction of the defendant's bloody shirt and trousers in evidence, the testimony being the defendant himself was unscratched and not wounded and that the blood could have only come from the body of the prosecuting witness, the defendant's wife. The condition of the said clothes having been fully described by witnesses and the only effect on the jury viewing such exhibits being to inflame their passions and prejudice them against the defendant.

7. It was error to refuse to permit the witness, E. A. Harris, to express his opinion as to the insanity of the defendant based upon the facts and circumstances known to and related by him.

8. His Honor failed to charge fully and differentiate the governing principles of the law distinguishing the crime of assault and battery of a high and aggravated nature from assault and battery with intent to kill.

9. His Honor failed to charge the law with reference to what constitutes sufficient legal provocation as applicable in this case.

10. The questions and conduct of the Solicitor on the cross examination of the defendant's witness, Harris, was prejudicial.

11. The questions and conduct of the Solicitor in the cross examination of the defendant King was prejudicial.

12. The argument of the Solicitor to the jury was highly improper and prejudicial.

On the night of May 4, 1951, Appellant proceeded to choke and beat his wife in a most horrible manner, using the heel of a shoe, a bed slat, and a small caliber rifle. Finally, he tried to drown her in the bathtub and probably would have accomplished his purpose except for the timely arrival of the officers, as he is quoted as saying 'Don't you know you are going to die tonight?' All of which resulted in her being hospitalized for a period of eleven days. Appellant testified that his state of mind was induced by his wife's unfaithfulness and his having consumed a large amount of whiskey and drugs known as headache powders.

Prior to Appellant's conviction in this case, he had been sentenced to serve a period of two years, with sentence suspended and Appellant being placed on probation, for a similar attack upon a sister. He was actually serving this sentence at the time of trial of this case as his probation had been revoked by Judge Moss on July 13, 1951, for operating a motor vehicle while under the influence of intoxicants. The Presiding Judge in passing sentence provided that the sentence in this case was to commence after the expiration of the one he was then serving. Appellant now contends such sentence amounts to cruel and unusual punishment and is in violation of Section 19, Article 1 of the South Carolina Constitution which provides that excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishment inflicted, and in violation of Section 1038, Code of 1942, which provides:

'In cases of legal conviction, where no punishment is provided by statute, the court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.'

'[The Supreme Court] has no jurisdiction on appeal to correct a sentence alleged to be excessive when it is within the limits prescribed by law in the discretion of the trial judge, and is not the result of partiality, prejudice, oppressive or corrupt motive. * * * The exercise of a sound judicial discretion must and should be performed in every case with a conscientious regard as to what is just and proper under the circumstances.' State v. Scates, 212 S.C. 150, 46 S.E.2d 693; State v. Bowman, 137 S.C. 364, 135 S.E. 360; State v. Johnson, 159 S.C. 165, 156 S.E. 353; State v. Bolin, 209 S.C. 108, 39 S.E.2d 197; State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273; see also, State v. Phillips, 193 S.C. 273, 8 S.E.2d 626; State v. Bell, 215 S.C. 311, 54 S.E.2d 900; State v. Brandon, 210 S.C. 495, 43 S.E.2d 449; and State v. Goodall, S.C., 69 S.E.2d 915.

Appellant does not contend that the sentence of ten years within itself amounts to cruel and unusual punishment, but that when the ten year sentence is to commence after the service of a two year sentence which Appellant was then in the process of serving, it does amount to cruel and unusual punishment and cites State v. Crosby, 160 S.C. 301, 158 S.E. 685. With this we do not agree. It was certainly within the discretion of the Trial Judge whether Appellant's sentence was to run concurrently or consecutively with one which he was then serving. It is only in rare and unusual circumstances that this Court will interfere with the discretion of the Trial Judge in the imposition of a sentence. The sentence of the Trial Judge was a discretionary matter and in the instant case was within the limitations prescribed. The circumstances are not so unusual as to warrant this Court interfering. Questions one and two are therefore resolved against Appellant.

Dr. J. O. Dunlap was called as a witness on behalf of the state and Appellant upon cross examination sought to propound to the doctor hypothetical questions relative to the effect of alcoholic liquors and BC headache powders upon the mind of one who takes excessive amounts of each. The Trial Judge ruled out these questions on the ground that there was no evidence up to this time of Appellant having taken alcohol and BC powders simultaneously, stating:

'I am limiting you to the proof in this case * * *. Understand you have a right to propose a hypothetical question, but not until the evidence has been adduced from which the hypothesis can be based. I have ruled that there is no evidence in this case that the Defendant or anybody else connected with it has been taking drugs of any kind, and until that is done the doctor cannot be asked about it.'

Later on an effort was made to cross examine the doctor as to matters purported to be within his knowledge as the effects of the above, he being the family physician. Permission was again refused on the same ground as above.

"Hypothetical Questions--Assumption of facts in putting a question may be regarded as a test of whether a witness is being examined as an expert. The expert, properly so called, is asked what would be his judgment upon all or any prescribed part of the facts, as to which evidence has been lawfully received, or which has been admitted, assuming that they are true; provided that a sufficient number of facts are assumed to enable the witness to give an intelligent opinion. The witness having no facts in mind as the result of observation, it is in this way alone that a proper basis for a reasonable judgment can be furnished, and the witness cannot add to the hypothetical question facts within his own knowledge and not in evidence. The requirement that the question should be in hypothetical form, stating fact of which there is some evidence in the case, continues throughout the examination of the expert, * * *. Different hypotheses may be submitted to the witness for different parties, provided the facts embraced in each hypothesis have some support in the evidence." Ellis v. Kansas City Life Ins. Co., 187 S.C. 334, 197 S.E. 398, 400.

'An expert witness may be examined by means of a hypothetical question based on facts supported by competent evidence and claimed to be proved, thereby eliciting the witness' opinion as to the inferences properly deducible from such facts, and such a question is the only way an expert may be examined if the facts are not within his personal knowledge or observation.' 32 C.J.S., Evidence, § 551, page 347.

The Trial Judge was correct in ruling out the questions at that stage of the trial and no attempt was made to recall Dr. Dunlap for this purpose after Appellant had testified to his being under the influence of drugs and liquor. We therefore see no error therein, and are of the...