State v. Mason

• Decision Date: 31 October 1949
• Docket Number: 16271.
• Citation: 56 S.E.2d 90,215 S.C. 457
• Parties: STATE v. MASON.
• Court: South Carolina Supreme Court

56 S.E.2d 90

215 S.C. 457

STATE v. MASON.

No. 16271.

Supreme Court of South Carolina

October 31, 1949

C Yates Brown, Spartanburg, for appellant.

Samuel R. Watt, Sol., Spartanburg, for respondent.

OXNER Justice.

Appellant, Broadus Mason, and his son, Boyce Lee Mason, were jointly indicted and tried for the murder of John Cantrell. The son was acquitted. Broadus Mason was found guilty of murder with recommendation to the mercy of the Court and sentenced to imprisonment for life. The questions to be determined on the appeal relate to the exclusion of certain evidence as to threats alleged to have been made by the deceased against appellant and to the Court's refusal to permit the attorney for appellant to cross-examine Boyce Lee Mason.

The homicide occurred about noon on Sunday, February 15, 1948. About 10:30 or 11:00 that morning, deceased, accompanied by Clarence Fowler and A. J. Fowler, brothers about 20 and 17 years of age, respectively, drove his Ford automobile to appellant's farm to hunt squirrels. This farm was located about a mile and a half from the residence of the deceased. All of the parties lived in the same community and knew one another well. The deceased married a first cousin of appellant. When the hunters arrived at appellant's farm they parked the car and all three went down near a creek and commenced hunting. They had a double-barreled shotgun and an automatic pistol. The appellant, whose residence was located about half a mile away, heard the shooting and went to the scene. He told the hunters that they could not hunt on his place and requested them to leave. Appellant says they refused to do so, commenced cursing and using vile epithets and that the deceased drew a pistol on him. After a brief argument, the hunters left to return to their car and appellant went across the field in an opposite direction toward his home. Appellant says as he was leaving, they cursed him and dared him to come back, which made him 'mad'. He went home where he secured a shotgun and then proceeded to the place where the car was parked. Meanwhile, his son, Boyce Lee Mason, about 26 years of age, came home and as a result of a conversation with a younger brother, procured a rifle and followed his father.

When appellant arrived at the parked car, deceased was under the steering wheel, A. J. Fowler was sitting next to him and Clarence Fowler was on the back seat. Appellant's testimony as to what then transpired is as follows: He opened the door and told the hunters to 'crank up and get going.' He said he was mad. They replied that they did not have to go. He said: 'Get on off. I don't want to have any trouble with you.' Clarence Fowler, who was holding the shotgun, then pointed it toward him. About this time his son arrived and told Clarence Fowler to unload the gun. He did so and laid the gun on the back seat. After the hunters refused to leave, appellant hit the deceased twice across the breast with the shotgun which he had secured at his home. His son said 'Don't shoot him', to which he replied, 'I ain't going to.' Appellant then punched or hit the deceased on the head and his gun went off. His son exclaimed, 'Daddy, you killed him', and he replied: 'I can't help it, I didn't aim to.'

Appellant's son gave substantially the same version of the occurrence. According to the State's testimony, the car had been started and the hunters were backing to leave when appellant arrived. The Fowler boys denied that Clarence Fowler threatened appellant in any manner, stating that the gun which Clarence Fowler had was unloaded and lying on the back seat. They said Boyce Lee Mason opened the door of the car and thereupon appellant shot the deceased without any provocation whatsoever.

Immediately after the shooting, the Fowler boys ran. Appellant's son got in the car and drove the deceased to a nearby farm house for aid. He and his father discovered in moving the deceased that his pistol was under his leg near his right hand. It seems to be conceded that at the time of the homicide, neither the appellant nor his son knew that the deceased was sitting on this pistol and there is no testimony tending to show that he made any effort to use it. Appellant's contention was that as he was punching or hitting the deceased with the gun to get him to leave, the deceased was accidentally shot. The autopsy disclosed that the load of shot entered the top of the deceased's forehead, resulting in instant death.

In the light of the foregoing brief résumé of the facts leading up to the homicide, we shall now consider appellant's contention that the Court erroneously excluded certain testimony tending to show threats alleged to have been made by the deceased. It is conceded that appellant had never had any prior difficulty with deceased. In fact, appellant testified that they 'never had any cross words in our lives until that day.' There is testimony to the effect that in October, 1947, about four months prior to the homicide, during a Halloween Carnival at a local school of which appellant was a trustee, the Fowler boys were shooting firecrackers and that when they refused to leave the school grounds after being requested to do so by appellant and the principal of the school, appellant slapped A. J. Fowler; and that on that night and on several occasions thereafter, the Fowler boys made threats against appellant which were communicated to him. Several witnesses testified to this effect without objection. One of them was allowed to further state that after relating these threats to appellant, he warned appellant to 'watch them boys, liable to give him some trouble.'

When appellant took the stand, he was permitted to testify that threats had been communicated to him by one Louis Bishop but the Court refused to allow him to testify 'what the threats were' until it was first shown that such threats had actually been made. Appellant was then withdrawn as a witness, his counsel stating that 'we are going to put up the witness who communicated the threats to the defendant.' Thereafter Louis Bishop was called as a witness and asked whether he had communicated to appellant the threats which he had heard. The Solicitor objected and during the colloquy which followed it developed that this witness had never heard either the Fowler boys or the deceased make any threats and that his information as to such threats had been gained from persistent rumors in the community which he says he communicated to appellant with the warning that ...