State v. Lee

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 58 S.C. 335,36 S.E. 706
• Parties: STATE. v. LEE.
• Decision Date: 31 July 1900

58 S.C. 335
36 S.E. 706

STATE.
v.
LEE.

Supreme Court of South Carolina.

July 31, 1900.

CRIMINAL LAW—HOMICIDE—TRIAL—CONTINUANCE—DYING DECLARATIONS—OPINION—ADMISSIBILITY—INSTRUCTIONS—FAILURE TO REQUEST—WAIVER—THREATS — ADMISSIBILITY —REMARKS OF COURT—HARMLESS ERROR.

1. Where defendant moved for a continuance, and produced a doctor's certificate that defendant's nervous system was disturbed and disordered and that he was in bad physical condition, but his appearance and manner did not indicate any nervous trouble or physical weakness, his motion was properly denied.

[36 S.E. 707]

2. Where deceased was shot by defendant, who claimed the killing was accidental, the admission of a statement of deceased, as a dying declaration, that "he shot me for nothing, " was not objectionable as a mere expression of opinion, since it constituted a statement of a fact.

3. Where deceased was shot by defendant, and there was evidence that they had engaged in quarrels frequently for several years prior to the shooting, the admission of a statement of deceased, as a dying declaration, that the shooting was willful and malicious, is not objectionable as the mere statement of an opinion, without facts on which to base it, since there was testimony which tended to show that there were facts within the knowledge of the deceased on which he might have based an opinion, and it was not necessary for him to state them.

4. Error based on the failure of the trial court to give an instruction in his preliminary charge is harmless, where such instruction was given on the final charge.

5. Where an instruction is proper when considered in connection with the whole charge, the fact that it was misleading when taken separately is harmless.

6. Where deceased was shot by defendant, who claimed the killing was accidental, an instruction that if the jury found that the killing was accidental homicide, but occurred when the defendant was in pursuance of an unlawful or felonious act, they should find him guilty of murder, was not objectionable as charging that the defendant should be found guilty of murder if he accidentally killed the deceased in pursuance of an unlawful act which was not felonious, since the instruction was correct as a general charge, and, if defendant desired a more specific one, he should have requested it.

7. Where deceased was shot by defendant, who claimed that the killing was accidental, evidence of threats made by defendant against deceased several years prior to the killing was not objectionable as too remote, since the length of time intervening is a circumstance to be considered by the jury in determining whether there was any connection between the threats and the deed.

8. Where deceased, who was a physician, was shot by defendant, and the statements made by deceased were admitted as dying declarations, a remark of the trial court in the presence of the jury that the testimony justified the opinion; that there was a continuous dying condition, of which the deceased was aware, bearing in mind that he was a medical man, and therefore able to form a more intelligent opinion of his condition than a layman.—was not so prejudicial to defendant, in indicating the opinion of the court as to the weight to be given the dying declarations by the jury, as to necessitate a reversal.

Appeal from general sessions circuit court of Darlington county; W. C. Benet, Judge.

Maxcy G. Lee was convicted of murder, and he appeals. Affirmed.

Woods & McFarlan, for appellant.

J. M. Johnson, for the State.

GARY, A. J. A general statement of the facts herein is correctly set forth in the argument of the appellant's attorneys, as follows: "October 5, 1899, Maxcy C. Lee, a young physician, was living with his aged father, Dr. Henry J. Lee, in Darlington county, near a little hamlet called 'Lydia.' The father and son had thus been living together for about five years, engaged in the practice of medicine in partnership. Dr. Henry Lee had lost his wife some three years before. His other children had married and settled around him at varying distances, and Maxcy, who was unmarried, was his sole companion; the only other inmate of his house being a white woman (a Mrs. Munn), employed as cook and housekeeper. Dr. Henry Lee had reached the age of seventy, and was held in high esteem and much beloved throughout the surrounding country. He was well to do, owning at least $25,000 in property, —mainly in money. As a general thing the relations between father and son were of the most cordial and affectionate character; and when the old man was unwell it was the practice of the son to sleep with him, so as to administer to his needs during the night. Both men, however, at times drank to excess, and at times quarreled violently, being both of passionate nature. These quarrels, as far as the testimony shows, were followed by speedy reconciliations. They occupied bedrooms in the rear part of the body of the house, fronting each other across a wide passage, and the doors of these rooms were in line, for the free circulation of air. As Maxcy Lee said, the house was built for ventilation. Dr. Henry Lee's room was on the right to one going down the passage from the front door of the house, and Maxcy Lee's on the left. Some two weeks or ten days before the fatal occurrence, Maxcy Lee had borrowed from a friend at Darlington C. H. (one Early) a double-barreled, hammerless, breech-loading gun, of superior make and value, for the purpose, he said, of killing some turkeys that had become wild, and had obtained, to go with it, No. 3 or 4 shot. This gun was regarded as a curiosity worth looking at by Maxcy Lee, and friends of his called in, or were called in, to examine it. There was some difficulty in unbreeching and working it, and, Maxcy being unskillful in so doing, his father handled the gun for inspection. The gun had its place in Maxcy's room, while the father had a gun that was kept in his own room. October 5th Maxcy Lee went to Darlington C. H., and while there obtained permission from Early to retain the gun a little longer. He returned home late in the day, riding with his brother Dickson Lee, who came with him. They had whisky with them, and on reaching home some hot water was obtained, and father and sons together took a toddy. As far as the testimony shows, they were on the best of terms, and were seated together in the bedroom of the father. No dinner had been put up or prepared for Maxcy, and he ordered an early supper, and was perhaps put out because he had nothing to eat. The father asked about the Early gun, and Maxcy said Early had sold it for $100. Sim Woods, a colored servant, was present and asked to see the gun; and, being told to do so, he got the gun from Maxcy's room and handed it to Dr. Henry Lee, who unbreeched it. Sim said it was unloaded, but he failed to put himself in a position to ascertain this fact. The old man was seated when he handled the gun, and Sim

[36 S.E. 708]

and Maxcy were standing; and, unless Sim had been standing just behind the stock of the gun, he could not have seen whether or not it was loaded. One barrel certainly was unloaded. After the gun had been replaced, Sim was told to go after the mail. It was raining, and, looking for an umbrella, Sim found that Maxcy's was broken. Upon this, Maxcy spoke very roughly and angrily to Mrs. Munn, reproaching her for not taking better care of his property. As far as the testimony shows, this roughness of the son did not offend the father. They were apparently sitting there, in the father's bedroom, on the friendliest of terms; the one imparting the news of the court house to the other. The 2d of October had been the father's birthday, and as a birthday present the son had given him a gold watch chain. Dickson had left, and Dr. Henry Lee had walked out to the road to meet Sim and receive his mail. While there, Mrs. Munn, doubtless offended by Maxcy's rough talk, came out of the house with a bundle. The old doctor directed her to go back, but, saying that she could not, she went her way. The old man got his mail (papers and letters) and went to the house. Sim and another negro were at the well, near the road. They saw him enter the house, and directly afterwards, as they say, they heard the report of the gun. Dr. Henry Lee said: As I came down the passage, Maxcy shot me from his door. He was in eight feet of me.' If Sim heard aright, he said further that Maxcy was standing in his (Maxcy's) room door, and shot him as he turned to go into his (Dr. Henry Lee's) room door. Maxcy Lee said that he was still in his father's room when the old man returned with the mail; that he (Maxcy) took his letters and went into his own room and sat on his bed, working with the gun in his lap; that his father came out in the passage and stood in front of him, eating an apple, when the gun fired." The defendant was found guilty, with a recommendation to mercy, and sentenced to life imprisonment in the state penitentiary. He appealed upon the following exceptions:

"(1) That his honor abused his discretion in refusing to continue the case in accordance with the motion of the defendant made on the 25th and 26th days of October, as it is respectfully submitted that said case should have been continued upon the physician's certificate presented for that purpose on said days.

"(2) That his honor abused his discretion in refusing to continue the case under the physician's certificate presented of date November 6, 1890, to which day he had postponed the trial of the case from the 26th day of October; it being respectfully submitted that under said certificate the defendant was not in any condition to undergo the strain of a serious trial, and the case should have accordingly been continued.

"(3) Because it is respectfully submitted that his honor, the circuit judge, abused his discretion in refusing, when said certificate of date November 6th was presented, and motion made for continuance, to allow defendant's...