State v. Mathis

• Decision Date: 03 December 1934
• Docket Number: 13955.
• Citation: State v. Mathis, 174 S.C. 344, 177 S.E. 318 (S.C. 1934)
• Parties: STATE v. MATHIS.
• Court: South Carolina Supreme Court

177 S.E. 318

174 S.C. 344

STATE v. MATHIS.

No. 13955.

Supreme Court of South Carolina

December 3, 1934

Appeal from General Sessions Circuit Court of Marlboro County; S.W G. Shipp and E. C. Dennis, Judge.

Ed Mathis was convicted of murder, and he appeals.

Affirmed.

J. K Owens and Geo. Freeman, Jr., both of Bennettsville, and P. A Murray, Jr., of Cheraw, for appellant.

S. S Tison and N.W. Edens, both of Bennettsville, for the State.

BONHAM Justice.

The appellant and May Baker were tried jointly on an indictment which charged them with the murder of Johnnie Griggs. May Baker was acquitted; Ed Mathis was convicted of murder with recommendation to mercy, and was sentenced to lifetime imprisonment. From his conviction and sentence he appeals.

Upon the call of the case and before arraignment, the defendant Mathis moved for severance and a separate trial for himself on the ground that the state would probably offer testimony which would be admissible as to one of the accused and inadmissible as to the other. The motion was refused.

At the conclusion of the testimony on the part of the state, a motion was made for directed verdict in favor of May Baker on the ground that "there is not sufficient testimony upon which to base a verdict of guilty." The motion was refused.

After the verdict was rendered a motion for new trial was made on behalf of Mathis on the grounds stated in the transcript of record from folios 396 to 399, both inclusive. This motion was refused by Judge Shipp, who presided.

Thereafter a motion for new trial on after-discovered evidence was made before Judge Dennis, the resident judge of the circuit, upon affidavits. The motion was refused and the appeal is also from that order.

The exceptions, four in number, state the following grounds, to wit:

1. Error and abuse of discretion in refusing the motion of Ed Mathis for a severance and a separate trial.

2. Error in not granting the motion for directed verdict of not guilty as to May Baker.

3. Error in not granting the motion for new trial made before Judge Shipp.

4. Error on the part of Judge Dennis in not sustaining the motion for new trial made on the ground of after-discovered evidence.

Counsel for appellant properly and frankly admit that a motion for severance is addressed to the sound discretion of the court. In this case they challenge the soundness of the discretion of the presiding judge. It is disclosed by the record that the motion for severance was made before arraignment, on the ground thus stated by counsel: "We have information that the prosecution in this case will offer some testimony that will be admissible as against that particular party, but inadmissible and incompetent as to the other party." The court was not apprised then of the nature of the testimony which the defendant's attorneys anticipated would be offered. During the argument, and the colloquy with the court, counsel said: "And we make it on the further ground that in the indictment it is charged that 'Ed Mathis and May Baker him, the said Johnnie Griggs * * * with a pistol did shoot, strike, etc.' That is two parties are charged in this indictment with killing a man with one pistol."

The presiding Judge correctly disposed of both grounds of the motion. As to the first ground, he said: "The Judge will tell the jury that a statement that one made out of Court, unless now a conspiracy was proved, is evidence only against the one making the statement. Where a person makes a statement, not in the course of a conspiracy, it is admissible only as against the person making it." An inspection of the charge discloses that the veteran jurist who heard this case clearly and fully explained to the jury that the testimony as to threats alleged to have been made by May Baker were to be taken against her alone and not against Mathis. This is the established rule, and we see no abuse of discretion in refusing the motion made on this ground. The fact that May Baker was acquitted strongly supports the argument that the jury did not consider this testimony, and, as there is other competent evidence of threats by Mathis, it is a safe inference that he suffered no harm from the testimony relating to May Baker.

As to the second ground of the motion, his honor said: "Now as to only one pistol being used. Where two or more people are charged jointly, though only one pistol is used, the State has to prove not only that one of the defendants used the pistol, but will have to show that the other was present, aiding and abetting the other in the shooting. It makes no difference who did the shooting, if the other is taking part; but unless the State has testimony to show that the others were aiding and abetting, there would be no evidence against them at all. * * * I don't think there is any objection to the mere fact that but one pistol was used. If there is no evidence showing that one did some act to encourage the other, there would be no evidence against her at all." That was a pronouncement of sound law. As the appellant admits that he did the shooting, and as May Baker was acquitted, it is...