State v. McGill
| Decision Date | 08 June 1939 |
| Docket Number | 14892. |
| Citation | 3 S.E.2d 257,191 S.C. 1 |
| Parties | STATE v. McGILL. |
| Court | South Carolina Supreme Court |
J D. Lanford, C. Victor Pyle, and C. A. Cappell, all of Greenville, for appellant.
R T. Ashmore, Sol., and T. A. Wofford, both of Greenville, for the State.
The defendant, Otis McGill, a young white man, was indicted and tried for murder at the May, 1938, term of the Court of General Sessions for Greenville County. He was found guilty as charged and sentenced to die by electrocution. His appeal to this Court, as stated and argued by his counsel, presents the following questions for decision:
These questions are fairly raised by the exceptions and will be considered in the order named.
First. The indictment as found by the grand jury charged the defendant with having killed and murdered one A P. Southern. Upon the call of the case for trial, but before arraignment of the accused, the solicitor moved the Court to be permitted to amend the indictment so as to allege the true and correct name of the deceased to be A. P. Southerlin. Counsel for the defendant objected on various grounds, but the trial Judge allowed the amendment for the reason, as stated by him, that its effect was merely to correct the wrong spelling of the name of the person killed. The appellant contends that this was error; that the name of the deceased is a vital and material allegation of the indictment, and cannot be corrected as was here attempted to be done.
Section 1005 of the Code of 1932 provides that: "If there be any defect in form in any indictment it shall be competent for the court before which the case is tried to amend the said indictment: Provided, Such amendment does not change the nature of the offense charged. ***" In State v. Blackstone, 113 S.C. 528, 101 S.E. 845, 846, an indictment charging violation of the prohibition law was amended upon the call of the case for trial, by inserting therein the true and correct name of the accused. This Court held on appeal that what is now Section 1005 of the Code permitted the amendment as it did "not change the nature of the offense."
The exact question here presented, whether an amendment of an indictment may properly be allowed for the correction of a misnomer as to the name of the deceased, has not been passed upon by this Court. No good reason appears, however, why the holding of the Court in the Blackstone case, to wit, that an amendment is permissible to correct the name of the accused, should not be applied with regard to the deceased. Here, as in the Blackstone case, the amendment "does not change the nature of the offense charged." There was no change in the identity of the victim of the homicide, but only in the name. The error being merely a matter of form, therefore, and not one of substance, the amendment was clearly proper under Section 1005 of the Code.
This view is in accord with the decisions of other jurisdictions. In 7 A.L.R. 1525, the annotator makes the following statement: --citing cases. See also 68 A.L.R. 929.
Counsel for the appellant cite the following cases in support of their contention: State v. Coleman, 17 S.C. 473; State v. Blakeney, 33 S.C. 111, 11 S.E. 637; State v. Platt, 154 S.C. 1, 151 S.E. 206. An examination of these decisions, however, discloses that the holding of the Court in each of them was predicated upon a question of jurisdiction. They are not, therefore, applicable to the case at bar. Nor does Clark v. State, 100 Miss. 751, 57 So. 209, 38 L.R.A.,N.S., 187, Ann.Cas.1914A, 463, lend any support or comfort to the position of the appellant. It appears from the opinion that the amendment was there allowed after the jury had returned a verdict. The Court indicated that if it had been made at the proper time the question would have been a different one.
As to the error alleged in exceptions 2 and 3, it is sufficient to say that the amendment being permissible, as we have held, the trial Judge was correct in refusing the motion to quash the indictment, made upon the ground that there was "a material variance from the proper name of the deceased;" and that he was right in ordering the case to trial on the indictment as amended.
Second. When the defendant was on the stand he testified that Southerlin, on the afternoon of February 18, 1938, came to the home of one Pauline Cooper where the witness lived; that after staying there for sometime, he asked the appellant to go out and buy a pint of whiskey giving him 50¢ with which to make the purchase; that when he returned with the liquor, a dispute arose as to how much money Southerlin had given him; that the deceased, who was large and strong; advanced upon him with a hammer and struck him on the side of the head, partly felling him to the floor, and as there was no way of escape, Southerlin being between him and the door, he seized a chair and knocked him out upon the porch and off the porch to the ground, when the mind of the defendant became a blank, and he could not remember doing thereafter any of the things which witnesses for the State testified he had done. He claimed that he killed Southerlin in self- defense and also pleaded the defense of temporary insanity.
On cross-examination, the solicitor questioned him vigorously with regard to these matters--the manner in which he claimed the deceased had advanced upon him and struck him with a hammer and as to what caused his lapse of memory. In doing so, it appears that he approached the witness with the hammer which had been introduced in evidence, and sought to show by demonstration just how the defendant claimed that Southerlin had advanced upon him, but against which the witness protested by saying "don't you hit me." Counsel then objected to such cross-examination as improper and asked the Court to require the solicitor to stand back from the witness when questioning him. Later counsel also objected to the way the solicitor asked the defendant certain questions, stating "he has no right to laugh at the witness like that;" and still later an objection was made "to the solicitor raving at him that way." The Court sustained the objection and admonished the solicitor not "to talk so loud."
Counsel for appellant, while conceding that "a defendant who testifies in his own behalf subjects himself to cross-examination and to proper attack," contend that the attitude, acts and language of the State's attorney "were so violent, harassing and abusive" that the effect was to prejudice the defendant and his defense in the eyes of the jury. We have read with particular care that part of the cross-examination about which complaint is made, and are of opinion that this question should be answered in the negative. Of course, in cross-examining a defendant who testifies on his own behalf, the solicitor should not approach the witness so closely as to embarrass or intimidate him, as is here charged; and certainly the use of violent or abusive language will not be allowed or condoned by the Court. It appears too that it was unnecessary to question the defendant in an unusually loud voice, as it is not claimed that he was deaf or even hard of hearing. As to that, however, the trial Court sustained the objection thereto, and the solicitor, as he himself states, thereupon "calmed down." Furthermore, as we have repeatedly held, conduct of a trial is left largely to the discretion of the presiding Judge, and this Court will not interfere unless it clearly appears that the rights of a complaining party were abused or prejudiced in some way. In the case at bar, the fair and able circuit Judge heard and saw how the solicitor was conducting or prosecuting the cross-examination of the defendant, and could thus easily determine whether his way or manner of doing it was proper or improper. He was in a better position to judge than we are, as we have before us only the printed record, which leaves much to inference as to what really happened. With all of the facts in his possession, Judge Oxner held, in passing upon a motion for a new trial, that the rights of the defendant were not prejudiced as claimed; and we cannot say, upon full consideration of the question, that he was wrong in so holding.
Third. Exceptions 5 and 6 raise this question. They charge that the solicitor and the associate counsel for the State made certain remarks in their arguments to the jury which had the effect of depriving the defendant of a fair and impartial trial.
It appears that the alleged comments were not objected to when made, and that the trial...
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