State v. McDaniel
| Decision Date | 25 March 1904 |
| Citation | 47 S.E. 384,68 S.C. 304 |
| Parties | STATE v. McDANIEL. |
| Court | South Carolina Supreme Court |
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 F. Youmans, for appellant. J Wm. Thurmond and W. H. Sharpe, for the State.
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, 1902. The jury rendered a verdict of guilty, with recommendation to mercy, and sentence of life imprisonment was imposed, from which he now appeals upon exceptions to the court's rulings as to the admissibility of testimony and charge to the jury.
The first exception alleges error in not allowing 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 of 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, 29 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.
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. Turner, 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 when it is charged that there is a design to misrepresent in consequence of the relation of the witness to the party or to the cause, by showing similar statements made before the relation existed. 10 Ency. Pl. & Pr. 330; State v. Thomas, 3 Strob. 269. This exception to the general rule is illustrated in Lyles v. Lyles, 1 Hill, Eq. 76, for in that case it was charged that the witness alleged to have made contradictory statements had been induced to testify as he did on the trial by hope or promise of money, and so it was competent to show in reply that the witness had been heard to make statements similar to his testimony at a time previous to the alleged improper relation to the cause. It does not appear that the present instance falls within the exception. There is no ground for a distinction in questions of this kind between testimony on re-examination after cross-examination of same witness and independent testimony. In the case of State v. Gilliam (S. C.) 45 S.E. 6, it was held it was not competent to corroborate the testimony of defendant's witness at the trial by showing that the witness made similar statements at the coroner's inquest.
The fifth exception imputes error in allowing W. R. Barrs to testify that there were no powder burns on deceased's hands, because not in reply to any testimony offered by defendant. The defendant and one of his witnesses (Joe Adams) had testified that, when the pistol fired, both defendant and deceased had hold of it--the defendant by the stock, and the deceased by the barrel. The testimony that there were no powder burns on deceased's hands had some tendency to show that deceased did not have hold of the barrel of the pistol at the time it was fired, and thus was in reply to defendant's testimony.
The sixth exception alleges error in not allowing the witness Hildebrand to testify to the declaration of the defendant immediately after the shooting, and in holding that the same was not part of the res gestae. The case shows the following in reference to this matter: Hildebrand had previously testified that after the shooting he advised defendant that he had better go away to avoid further trouble--to go and tell his wife. The witness Johnson had testified that after the shooting he told defendant he had killed Neece, and that he had got his foot in it, and that defendant said, "No man put your hands on me;" that defendant inquired of Johnson and Hildebrand for the gun; and that Adams got the gun and gave it to defendant, who then went to his house. As stated in the case of State v. Belcher, 13 S.C. 463: If the declarations are a mere narration of a past occurrence, they are not admissible as res gestae. State v. Taylor, 56 S.C. 369, 34 S.E. 939. When the declarations are not precisely concurrent with the transaction, a delicate and complex question is presented to the trial judge, in determining their admissibility, and each case must be decided upon its own circumstances. In the nature of the case, there can be no hard and fast rule as to the precise time near an occurrence within which declarations explanatory thereof must be made, in...
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