State v. McDonald

• Decision Date: 14 July 1937
• Docket Number: 14512.
• Citation: 192 S.E. 365,184 S.C. 290
• Parties: STATE v. McDONALD.
• Court: South Carolina Supreme Court

192 S.E. 365

184 S.C. 290

STATE v. McDONALD.

No. 14512.

Supreme Court of South Carolina

July 14, 1937

Appeal from General Sessions Circuit Court of Fairfield County; A L. Gaston, Judge.

Furman McDonald was convicted of murder, and he appeals.

Affirmed.

Thurmond & Buzhardt, of McCormick, and McDonald, Macaulay & McDonald of Winnsboro, for appellant.

W. G. Finley, Sol., of York, for the State.

FISHBURNE Justice.

The defendant, Furman McDonald, was convicted of the murder of H. B. Thompson, Jr., at the June term of the court of general sessions, 1936, in Fairfield county, and sentenced by the presiding judge to death by electrocution.

McDonald is a white man, and was 43 years of age at the time of his trial. He is married, and is the father of four children. The deceased, H. B. Thompson, Jr., was a lad of thirteen years, who lived with his parents, Mr. and Mrs. H. B. Thompson, in the Greenbriar section of Fairfield county, at Mossydale, which is about a quarter of a mile from the home of McDonald, in the same county.

On the night of September 29, 1935, between 12 and 1 o'clock, McDonald left his home in his automobile and drove to the home of the Thompsons. He stopped his car directly in front of the house, with the headlights shining on the front door. He then proceeded to break into the house by bursting open this door. Finding the elder Thompson in bed, he clubbed him into unconsciousness with a shotgun. Mrs. Thompson, who was awake when the defendant entered the house, and who occupied the same bed with her husband, succeeded in grasping and holding the gun so as to stop any further attack upon her husband. Aroused by the violent uproar, the deceased, who occupied an adjoining room, came to the connecting door, screaming and crying, and asked what the disturbance was about. Whereupon, McDonald, making the statement, "You are the one that I want," shot at him. The deceased begged the defendant not to shoot him again, but the defendant shoved the boy from him, and shot him the second time, inflicting the mortal wound. Reloading the gun, McDonald made the threat that he was going to shoot Mr. Thompson, but he desisted when Mrs. Thompson again struggled with him for its possession. He then left the house, but before leaving he struck her several times with the weapon. The deceased died in the office of Dr. G. C. Buchanan in the town of Winnsboro within a few hours after he was shot.

Before leaving his home that night, McDonald severely beat his little ten year old girl, in the effort to extort from her the statement that the deceased had cut her. In order to make him discontinue the punishment, the little girl finally made the statement that H. B. Thompson, Jr., had cut her on the stomach with a knife. This assertion is admittedly untrue, but it was immediately following it that the defendant went to the Thompson home. There is testimony in the record that the defendant continually talked about the Thompsons, and some time prior to the homicide, made the statement that Thompson and his boy should be run out of the community; and just before leaving his home that night, he said that he intended to kill all of them. There is also testimony tending to show that he was drinking on the night of the homicide.

This brief statement outlines the setting of the crime.

Upon his trial, which occurred about eight months thereafter, the defendant interposed the plea of insanity, and testified that he knew and remembered nothing of what had occurred on the night of the homicide. To every question relating to the crime, he answered: "I don't know." From the sentence imposed, McDonald appeals to this court, charging error in the refusal of his motion for a continuance of the case, the refusal to stand aside certain jurors for cause, and in the refusal to order a new trial.

Upon the opening day of the court, counsel for the appellant made and argued a motion for a continuance of the case, based upon the inability of Mr. Roger Smith, of Fairfield county, a former employer of the defendant, and of Mr. J. Frank Mattison, probate judge for McCormick county, to attend the trial on account of illness. The motion was denied, and the case was set for trial the next day, Tuesday, June 9th. On that day the motion was renewed, upon the same ground, and was again refused. It is argued that the motion for continuance should have been granted because these two witnesses for the defense were highly material.

It appears that the defendant was employed at a sawmill of Mr. Smith, in Fairfield county, for six or seven years immediately prior to the homicide, and it was contended by counsel that Mr. Smith was relied upon to prove the mental condition of the defendant and his alleged periods of insanity or "spells," during those years.

The defendant was a native of the county of McCormick, and several witnesses from that county attended the trial and testified as to the defendant's mental condition during the various periods that they knew him. Counsel for the appellant undertook to show, by these and other witnesses, the mental characteristics and the alleged erratic conduct of the defendant from his earliest years, and to prove that the defendant had exhibited symptoms of mental derangement from the time he was a child until the date of the trial.

We can discover no ground for the charge of abuse of discretion in refusing the motion for continuance.

The following remarks of the presiding judge as to the absence of these two witnesses fully vindicate his refusal to grant a continuance on that ground:

"Now, in regard to the absence of these witnesses, neither one of those witnesses claim to be present at the time of the occurrence-at the time this unfortunate killing occurred; and their testimony would necessarily be merely corroborative and cumulative of that of other witnesses. Numerous other witnesses covered every possible point in the case, prior to the killing and after the killing. And their evidence would not have been different to that of other witnesses along the same line.

And that leads up to the testimony of Dr. Buchanan. He was a witness who saw the defendant immediately after the occurrence, and therefore was better acquainted with the defendant's condition than the absent witnesses were; had a better opportunity to judge the defendant than the other witnesses. He resided in the county. He is a gentleman of the highest character, and above reproach in every respect. Now, if he was not able to say this defendant was insane, and with all the knowledge and opportunity he had to pass on his insanity, I do not see how the jury would be expected to say he was insane. Dr. Buchanan had no adverse interest to the defendant; all of his leanings would have been in favor of the defendant. He said he was compelled to testify the truth. And the defendant, on the stand, said he was today in sound mind."

We should add that an affidavit executed by Probate Judge Mattison was read to the jury, and the prosecuting attorney agreed that if Mr. Mattison were present he would testify to the statements contained in the affidavit.

In addition to the testimony of the defendant himself, thirteen witnesses, medical and lay, including the defendant's wife and his mother, were sworn on behalf of the defense, some from McCormick county and some from Fairfield county, and their testimony was directed in each instance toward establishing proof of the defendant's insanity.

The case of State v. Williamson, 115 S.C. 315, 105 S.E. 697, cited by the appellant, is not in point. In that case it was held that it was an abuse of discretion on the part of the presiding judge not to grant a continuance because of the absence of the defendant's wife, where it appeared that she was present at the time of the killing, was defendant's most material witness, and could not attend the trial and testify without subjecting herself to dangerous consequences on account of her physical condition.

Applications for continuance are addressed to the sound discretion of the court, and it is a well-established rule in this commonwealth, and perhaps in all American jurisdictions, that the trial court's ruling in granting or in refusing a motion for a continuance in a criminal case will not be disturbed in the absence of a clear and conclusive showing of abuse of discretion. State v. Crosby, 88 S.C. 98, 70 S.E. 440; State v. Edwards, 86 S.C. 215, 68 S.E. 524; State v. Franklin, 80 S.C. 332, 60 S.E. 953; State v. Williams, 76 S.C. 135, 56 S.E. 783. The exceptions raising this question are overruled.

It is next contended that the examination of certain jurors upon their voir dire disclosed that they were "not indifferent in the case," and that the trial court committed reversible error in not excluding them from the jury. Our attention is particularly directed to the examination of D. F. Hatchell, the seventeenth juror called in the case. This juror did not sit upon the jury which tried the defendant. He was excluded by peremptory challenge on the part of the defense. It is contended that he should have been excluded for cause by the trial judge upon the ground that he stated that he had formed or expressed an opinion as to the guilt or innocence of the accused, and, in effect, that it would take some evidence to remove that opinion.

The juror stated that he had formed or expressed an opinion, but explained this by saying that he just made a remark when he first heard of the case; that he was without bias or prejudice, would render a verdict in accordance with the law and the evidence, and knew of no reason why he should not give the state and the defendant a fair trial.

This question and the following question will be passed upon together.

Error is also...