State v. Long

• Citation: 77 S.E. 61,93 S.C. 502
• Court: United States State Supreme Court of South Carolina
• Decision Date: 07 December 1912
• Parties: STATE v. LONG.

77 S.E. 61
93 S.C. 502

STATE
v.
LONG.

Supreme Court of South Carolina.

Dec. 7, 1912.

1. Homicide (§ 203^*)—Dying Declarations —Requisites.

To render dying declarations admissible in a homicide case, it need only be shown that the death of the declarant was imminent when the declarations were made; that he was without hope of recovery; and that the circumstances of the cause of approaching death were the subject of the declaration.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.*]

2. Criminal Law (§ 1059*)—Appeal—Specification of Errors.

Exceptions to the 'admission of evidence will not be reviewed on appeal, unless the specific errors are pointed out.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*]

3. Criminal Law (§ 957*)—Verdict—Affidavits of Jurors.

While a verdict decided by chance or by a bare majority of the jury, or one rendered against the will of a juror, may be set aside, a juror cannot impeach his verdict by affidavit as to what transpired in the jury room.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.*]

4. Criminal Law (§ 959*)—New Trial-Argument—Restriction.

It is within the discretion of the trial judge as to how long he will permit argument on a motion for new trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.*]

5. Criminal Law (§ 823*)—Instructions-Degree of Proof —Reasonable Doubt — Defenses.

The court, in the first part of its charge, stated that the state was bound to prove, beyond a reasonable doubt, the material allegations of the indictment before a verdict of guilty of murder could be returned, and again, in discussing the burden of proof, charged that the state was bound to prove defendant's guilt beyond all reasonable doubt. He then charged that the burden was on defendant to prove his plea of self-defense by a preponderance of the evidence. Held, that the court's omission to further charge that, if the jury had a reasonable doubt as to whether defendant had established his plea of self-defense by a preponderance of the evidence, they should acquit, and that he was entitled to the benefit of every reasonable doubt on every material point in the case, was not error.

[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*]

Watts, J., dissenting in part.

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

George W. Long was convicted of manslaughter, and he appeals. Affirmed.

Grier, Park & Nicholson and Featherstone & McGhee, all of Greenwood, for appellant.

Solicitor Cooper, of Laurens, Tillman & Mays, of Greenwood, Cothran, Dean & Cothran, of Greenville, and W. N. Graydon, of Abbeville, for the State.

WATTS, J. The defendant was indicted for the murder of Luther Mullinax, and tried for the same at the January term of court of general sessions for Greenwood county. 1912, and found guilty of manslaughter. A motion for a new trial having been made and overruled by his honor, Judge Sease, he was sentenced to 3 1/2 years in the penitentiary. An appeal was taken, alleging numerous errors on the part of the presiding judge. The exceptions, 17 in number, can be grouped

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together and considered under general heads: (1) They allege error on the part of the trial judge in admitting testimony over the objection of defendant; (2) allege error on the part of his honor in his charge to the jury; (3) allege error to the manner in which the verdict of the jury was arrived at, and in not granting a new trial and setting the verdict of the jury aside; (4) allege error on the part of his honor to hear counsel in full on their motion for a new trial.

As to the first, a careful examination of the record in the case will show that his honor was not in error in admitting the evidence of Mrs. Mullinax, as far as he allowed it to come in as a dying declaration. The rule laid down as to dying declarations is thus stated: "To render these declarations admissible, it was only necessary that the trial judge should be satisfied: First, that the death of the deceased was imminent at the time the declarations were made; second, that the deceased was so fully aware of this as to be without hope of recovery; third, that, the subject of the charge was the death of the declarant, and the circumstances of the death was the subject of the declaration." State v. Banister, 35 S. C. 200, 14 S. E. 67S; State v. Petsch, 43 S. C. 148, 20 S. E. 993.

As to the other exceptions under this head, no specific errors are pointed out to direct our attention to what was objected to, and an examination of the record by us fails to reveal any testimony, on this ground at the trial, that was objected to by the defendant. The only testimony along this line is that of defendant's witnesses, who testified without objection. The exceptions raising this question are overruled.

As to the exceptions that allege error in the manner in which the verdict of the jury was arrived at: An unbroken line of decisions by the courts of this state, even before the case of Smith v. Culbertson, 9 Rich. 106, up to this time, sustains the position taken by his honor, Judge Sease. In Smith v. Culbertson, Wardlaw, judge, says: "But here the privacy of the jury room is to be invaded. The grounds upon which the assent of the jurors to the verdict publicly rendered was given are to be scrutinized; and men sworn to render a true verdict, according to the evidence, are to be heard to declare that they agreed to abide the determination of chance, and yielded their assent to the verdict only because they had entered into this agreement, plainly repugnant to the obligation of the oath they had taken." The court also says: "The mischiefs, the delays, the arts, the scandal likely to ensue come naturally to our thoughts when we imagine the encouragement given to the pursuit of jurors by disappointed suitors, for the purpose of obtaining affidavits to invalidate verdicts regularly rendered. Any affidavit made by a juror for this purpose, after separation of the jury, is danger ous and suspicious; but especially so Is an affidavit showing gross impropriety in which all the jurors participated, and which at its commission was known only to themselves. A verdict decided by chance may be set aside. So may a verdict which was decided by a bare majority of the jury, and one which was rendered against the will of any juror. Yet verdicts must be generally attained by compromise of some sort. The reasons of jurors are no doubt often ridiculously absurd. There must, however, be an end to litigation. After a verdict has been rendered, and the jurors have dispersed, a juror would not be heard who would say that his assent was forced, or was given under some misconception, or according to some chance, whose decision he had privately resolved to adopt. His public silent act would refute all such afterthoughts; and his silence, when he should have spoken, would outweigh his subsequent assertions. With like reason, the solemn act done by a jury as a body should not be invalidated by affidavits contrary to it, which some or all of the jurors may make concerning the private reasons which influenced the body, imputing misconduct to themselves, and not to other persons. Whether they have been misled by sophistry or mistake, or have adopted the determination of a majority or chance, they have, upon their oaths, unanimously rendered a verdict in solemn form, and high considerations of justice and policy place their verdict beyond their future influence. Decency itself forbids that they should assail it by disclosure to their own shame—the secrets of themselves."

This principle has been reaffirmed and recognized in several subsequent cases, where the facts were somewhat different and not altogether like the identical facts in the case of Smith v. Culbertson; the difference of facts being immaterial in some and quite a difference in others. Some of these cases are State v. Nance, 25 S. C. 172; State v. Senn, 32 S. C. 403, 11 S. E. 292; Bratton v. Dowry, 39 S. C. 388, 17 S. E. 832; State v. Bennett, 40 S. C. 310, 18 S. E. 886; State v. Kelley, 45 S. C. 668, 24 S. E. 45; State v. Robertson, 54 S. C. 154, 31 S. E. 868.

It appears, when the verdict was returned at the request of defendant's counsel, the jury was polled, and each juror announced that the verdict rendered was their verdict. Later on, when an effort was made to show the court how the verdict was arrived at, and what took place in the jury room, Judge Sease at first stopped the reading of the affidavit of the foreman of the jury, and "held it was against public policy to go into the jury room and find out what had been done in there." He was correct in this ruling, and should have adhered to it, as there was no effort to show that the jury, after returning, had been subject to any outside influence, or that their privacy had been invaded, or that they had been furnished liquor or anything

[77 S.E. 63]

of the kind, or that they were guilty of misconduct, such as the court should inquire into. The sole effort was to bring out what took place in the jury room among the jurymen themselves, uninterrupted by outsiders, in the privacy or secrecy of their deliberations. But his honor went further, and reconvened the jury and examined them, or permitted it, and allowed all of the facts to be brought out, and then refused to interfere with the verdict rendered by them. He decided, after the fullest investigation, that there was no misconduct on the part of the jury, and that the verdict by them was their verdict. We are inclined to agree with him in this view, and think the verdict rendered by the jury was arrived at by them voluntarily, and free from misconduct on their part, to such an extent that it should not be interfered with on that account. The exceptions raising this question are therefore overruled.

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