State v. Mcdaniel

• Citation: 68 S.C. 304,47 S.E. 384
• Parties: STATE . v. McDANIEL.
• Decision Date: 25 March 1904
• Court: United States State Supreme Court of South Carolina

47 S.E. 384
68 S.C. 304

STATE .
v.
McDANIEL.

Supreme Court of South Carolina.

March 25, 1904.

HOMICIDE—EVIDENCE—IMPEACHMENT—EES GESTAE—INSTRUCTIONS.

1. Where, on trial for murder, the defense is accidental killing, the reputation of deceased when drinking is incompetent on issue of his violence when drunk.

2. On trial for the murder of a town marshal, it is competent to show, on cross-examination, differences between the town council and defendant about electing a marshal, in order to show the relation existing between the parties.

3. After evidence of contradictory statements by a witness, by way of impeachment, it is incompetent to show that he had made statements in accordance with his testimony at the trial.

4. Where, on trial for murder, there was evidence that deceased had hold of the pistol when he was shot, evidence in return that there were no powder burns on his hands is admissible.

5. The court will not reverse a ruling of the trial judge in excluding evidence of statements of accused made two or three minutes after the homicide and a short distance from the place of the crime, as not a part of the res gestae.

6. On a trial for murder, an instruction that "if defendant intentionally, wrongfully, killed the deceased, without any justification or without excuse, then he killed him with malice, and that would constitute murder, " is not a charge on the facts.

7. An instruction that if defendant wrongfully killed deceased, without justification, then it would constitute murder, properly defined the crime.

8. Where, on a trial for murder, defendant pleads accidental killing, the state must overcome such plea beyond all reasonable doubt.

Appeal from General Sessions Circuit Court of Lexington County; Klugh, Judge.

R. W. McDaniel was convicted of murder, and appeals. Reversed.

Efird & Dreher, G. T. Graham, and Leroy P. Youmans, for appellant.

J. Wm. Thurmond and W. H. Sharpe, for the State.

JONES, J. This case was first heard at the April term, 1903, of this court, but, an order for rehearing having been made, it was heard again at the present term. The defendant was tried at Lexington, February term, 1903, under an indictment for the murder of John L. Neece at Swansea, Lexington county, on the 24th day of December, 19

The first exception alleges error in not al lowing the witness Hildebrand to testify as to the reputation of deceased for drinking, in that one issue raised by the defendant was that deceased was a violent and treacherous man when drinking, and that he was intoxicated at the time of the difficulty. The court did not restrict defendant in showing the reputation of the deceased for violence when drinking, and that deceased was drinking at the time bf the difficulty. The reputation of the deceased for drunkenness was not relevant. In a prosecution for murder, evidence of the general bad character of the deceased is irrelevant, but evidence of his character or reputation for violence, treachery, etc., is admissible under a plea of self-defense. State v. Turner, 20 S. C. 34, 6 S. E. 891, 13 Am. St. Rep. 706. There was no plea of self-defense in this case. On the contrary, counsel for defendant expressly declared on trial that defendant did not plead self-defense, but pleaded homicide by accident

[47 S.E. 385]

A second exception assigns error in not allowing defendant to testify that he had received a message from the deceased concerning the discharge of blank cartridges within the corporate limits of the town on the day of the difficulty. The deceased was marshal of the town of Swansea, and it seems there was an ordinance of the town against the firing of guns within the corporate limits. The defendant kept a store in Swansea, and was celebrating Christmas Eve by firing several blank cartridges from a shotgun while standing in his store door. The homicide, whether intentional, as contended by the prosecution, or accidental, as contended by the defense, was the result of a struggle between the defendant and the deceased, growing out of the deceased's attempt to arrest defendant for the alleged unlawful shooting of the gun. The court ruled that defendant could not testify as to any message delivered by a third person, as coming from the deceased marshal, about shooting blank cartridges; but later, all objection being withdrawn, the defendant was permitted to testify fully as to the said message as received by him; and the bearer of the message, Joe Adams, testified as to the same, which was to the effect that the marshal permitted or did not object to the shooting of blank cartridges. The exception is therefore without foundation.

The third exception complains that there was error in allowing and compelling defendant to testify as to his action and that of the town council of Swansea in the election of a town marshal, in that said testimony showed a difference between the defendant and the town council—an entirely collateral issue, not competent in this case and prejudicial to the defendant. The solicitor, as it appears, was endeavoring, on the cross-examination of the defendant, to show that defendant had some ill will or unfriendliness to the deceased, by bringing out that defendant had tried to secure the election of another marshal at the time deceased was elected. The question propounded and admitted over defendant's objection was, "You tried to get in another marshal, did you?" The question was competent for the purpose of showing whether the relations of defendant and deceased were friendly.

The fourth exception charges error in refusing to allow defendant's witness Redmond to be asked on redirect examination whether his testimony at the coroner's inquest was to the same state of facts as his testimony on the trial. The solicitor had cross-examined the witness as to his statements in an affidavit used in an application for bail, with a view to show contradictory statements, and appellant contends that the testimony proposed was competent on redirect examination. It would doubtless be competent, after a witness has been cross-examined respecting a former statement made by him, for the party who called him to re-examine him as to the same statement as in State v. Tur-

ner, 36 S. C. 538, 15 S. E. 602; but where evidence of contradictory statements by a witness is offered by way of impeaching the witness, it is not competent in reply to offer evidence that the witness has on other occasions made statements similar to what he has testified in the cause. 1 Greenleaf, Ev. § 469; 10 Ency. PL & Pr. 330; Davis v. Kirksey, 2 Rich. Law, 176; State v. Thomas, 3 Strob. 269. There is an exception to this general rule, making such testimony competent...