State v. Knox

• Decision Date: 03 July 1914
• Docket Number: 8864.
• Citation: 82 S.E. 278,98 S.C. 114
• Parties: STATE v. KNOX.
• Court: South Carolina Supreme Court

82 S.E. 278

98 S.C. 114

STATE v. KNOX.

No. 8864.

Supreme Court of South Carolina

July 3, 1914

Appeal from General Sessions Circuit Court of Anderson County; H. F Rice, Judge.

"To be officially reported."

Ab Knox was convicted of assault and battery of a high and aggravated nature, and he appeals. Reversed and remanded.

Gage J., dissenting in part.

A. H Dagnall, of Anderson, for appellant.

P. A Bonham, Sol., of Greenville, for the State.

GARY C.J.

The defendant was indicted for assault and battery with intent to kill, and was convicted of assault and battery of a high and aggravated nature.

The first question that will be considered is whether there was error, on the part of his honor the presiding judge, in allowing the solicitor to cross-examine the defendant, over his objection, as to other quarrels, not connected in any way with the offense for which he was on trial, when he had not introduced testimony as to his reputation for peace and good order.

The record shows that the following took place during the cross-examination of the defendant by the solicitor:

"Q. Now, Knox, this isn't the first time you have been in trouble like this, is it? A. Trouble like what? Q. Why, like this, this fight? As a matter of fact, it is a common practice of yours to do things of this kind, isn't it? You cut Mr. Trammel over there at Belton, didn't you? Objected to by Mr. Dagnall: It is not permissible to cross-examine the defendant on quarrels with persons other than the prosecutor, as this does not tend to affect the credibility of the defendant. The defendant has not put in issue his reputation or character for peace and good order; therefore the state cannot attempt to show that he has a turbulent or violent character. The only issue in this case is this: Is the defendant guilty of an assault and battery, with intent to kill, upon one Frank Fant? And other quarrels would be irrelevant and prejudicial to the defendant, as we did not anticipate that we would have to answer for every difficulty in which the defendant might have been connected in the past. Mr. Bonham: Your honor, if they put witnesses up as to his reputation, I could bring witnesses here to controvert them. But, where the man goes on the stand himself, he certainly lays the gate open to all of his previous actions, to discredit his statements in this particular case, and I am entitled to prove, if I can, by his own admissions on cross-examinations that he has a turbulent and violent character. Court: Go on; I will let you examine him."

His honor the presiding judge also allowed the solicitor to ask the defendant the following questions on cross-examination:

"Didn't you go up to the home of Mr. Coker on one occasion and raise a row? * * * Well, you went up there and got into a fight with him, didn't you? Now, didn't you on another occasion, at your home on Christmas eve, didn't your own brother-in-law shoot at you, for hitting your sister in the head with a pair of brass knucks?"

There is a marked distinction between the credibility and the character of a witness.

"There is a wide difference between character and conduct for a time, and one equally wide between general character and proper credit on a special trial or occasion." Chapman v. Cooley, 12 Rich. 654; State v. Jones, 29 S.C. 201, 7 S.E. 296; State v. Wallace, 44 S.C. 357, 22 S.E. 411; State v. Rice, 49 S.C. 418, 27 S.E. 452, 61 Am. St. Rep. 516; State v. Summer, 55 S.C. 32, 32 S.E. 771, 74 Am. St. Rep. 707; State v. Stukes, 73 S.C. 386, 53 S.E. 643.

The general rule for attacking the credibility or character of a witness is fully stated in the case of Sweet v. Gilmore , 52 S.C. 530, 30 S.E. 395, cited with approval in State v. Gibson, 83 S.C. 34, 64 S.E. 607, 916.

In the case of State v. Robertson, 26 S.C. 121, 1 S.E. 445, the court held that the generally accepted doctrine was that where the defendant testifies in his own behalf his character for truth and veracity is thereby uncovered but not his general moral character. In that case the following language from Whart. Cr. Evid. §§ 429, 433, was quoted with approval:

"A party, it may be said generally, when he becomes a witness, is subject to the usual duties, liabilities, and limitations of witnesses. * * * His character for truth and veracity may be impeached and his testimony may be commented on by counsel to the same effect as the testimony of other witnesses."

A witness may decline to answer a question tending to subject him to a criminal prosecution. State v. Mitchell, 56 S.C. 524, 35 S.E. 210.

"The defendant, when sworn in his own behalf, may be asked on cross-examination about any of his past transactions tending to affect his credibility, but not about such as affect his character in other respects." State v. Mills, 79 S.C. 187, 60 S.E. 664.

The testimony to which the defendant interposed objections did not tend to impeach his credibility, and, as he had not put his character in issue for peace and good order, the testimony was not admissible.

"In regard to the privilege of witnesses in not being compellable to answer, the cases are distinguishable into several classes: (1) Where the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge. Here the authorities are exceedingly clear, that the party is not bound to answer." Gr. on Evid. § 451.

It will thus be seen that there are three reasons why the testimony was erroneously admitted: (1) Because it did not tend to affect the credibility of the witness; (2) such testimony tended to subject the defendant to a penal liability or to some kind of punishment, or to a criminal charge; and (3) because the defendant had not put in issue his character for peace and good order. The exceptions raising this question are sustained.

The next assignment of error is as follows:

"Because his honor erred in failing and

...