State v. McIver, 17793
| Decision Date | 01 June 1961 |
| Docket Number | No. 17793,17793 |
| Citation | 120 S.E.2d 393,238 S.C. 401 |
| Court | South Carolina Supreme Court |
| Parties | STATE, Respondent, v. George McIVER, Appellant. |
Elliott D. Turnage, Darlington, for appellant.
Robert L. Kilgo, Sol., Darlington, for respondent.
At the January, 1961, term of the Court of General Sessions for Darlington County, the defendant George McIver was tried for murder of Dorothy Mae (also known as Tootsie) Brown. Convicted of manslaughter and sentenced to serve ten years, he appeals on numerous exceptions charging error on the part of the trial judge: (1) in admitting certain testimony; and (2) in denying his motions for directed verdict and for new trial.
Following is a summary of the testimony for the state:
Howard Godbold: Witness, a patrolman of the Darlington Police Department, went at about 6:15 a. m. on October 22, 1960, to No. 364 Edwards Avenue to investigate a reported shooting. Several persons were standing outside of the house, among them the defendant, who was near the door. In response to the officer's inquiry as to who was hurt, the defendant said: and, turning, walked into the house. Godbold followed, and, as they entered the bedroom, asked: 'Where are you hurt?' Defendant replied: 'I shot Tootsie.' Godbold asked where she was, and defendant pointed to the bed. She was lying on the bed, with the covering over her. Godbold pulled the covering back and found that she was dead, her body still warm. Blood was seen on her gown and on the bed, but not elsewhere. After calling police headquarters, the witness returned to the bedroom and asked the defendant where the gun was. It was on the dresser; the defendant picked it up and said: 'This is it.' The gun, a .22 caliber pistol, had in it five cartridges, of which one had been fired. Defendant then said that he had been in the bed asleep, and that when he awoke 'she had the gun cocked on him and when he hit her hand it went off.' The witness testified, further, that when the defendant was brought to the police station he said that when he awoke the deceased was kneeling beside the bed and 'had the gun on him' and that he hit her hand.
N. G. Dudley: Witness, a lieutenant of the Darlington Police Department, had received report of the shooting about 6:15 a. m. and had sent patrolman Godbold to investigate. Upon Godbold's calling back, Dudley went to the house, where he found defendant talking to Godbold in the bedroom. The house consisted of two stories, with two apartments on each floor. Defendant's apartment was on the lower floor and was separated by a very thin partition from the adjoining apartment, which was occupied by Louise Stokes and her husband, Willie Stokes. Officer Dudley testified that he asked the defendant what had happened, and that at that time, in his apartment, the defendant stated that he and the deceased had been playing in the bed and the gun 'went off'; but that later, at the police station, he said that she had waked him up, that she was kneeling on the side of the bed with the gun pointed at him and told him she was going to shoot him; and that he had, with his hand, struck the gun or her hand and the gun 'went off'. The witness further testified that the gun, which had been admitted in evidence without objection, would not hold the hammer back in a cocked position, and could be fired, ordinarily, only by pulling the trigger.
Dr. William Early: Following a call from patrolman Godbold about 6:15 a. m. on October 22, witness went to No. 364 Edwards Avenue and examined the body of the deceased, which was lying on the bed. There was a puncture wound in the left chest about two inches to the inside of, and two inches above, the left nipple. Next day he opened the chest and traced the bullet, finding that it had entered at a slight angle upward and had gone through a portion of the lung and into the heart. He was unable to say from his examination whether the injury had been inflicted by the deceased or by some other person.
Louise Stokes: The defendant had moved in the summer of 1960 into the apartment adjoining that in which the witness and her husband lived. Dorothy Mae Brown had been in the defendant's apartment for about three weeks prior to the shooting. On the morning of October 22, 1960, witness got up around six o'clock to prepare breakfast, and heard the defendant say to Dorothy Mae Brown that if she 'did it' he would shoot her. Two or three minutes later witness heard a shot and then heard the defendant say: 'Somebody get the doctor or the ambulance.' Witness went across the street and called the police. She did not go into the defendant's apartment, and never had any conversation with him about what had happened. She recognized the voices of the defendant and the deceased. On cross-examination, she stated that on the night before the shooting Dorothy Mae was in the defendant's apartment when the witness came home from work; that she did not know at what time the defendant came in; that Dorothy Mae was not a good friend of the witness; that she did not know whether or not Dorothy Mae was drinking that night; and that although she heard voices in the defendant's apartment she did not hear what words were spoken except as before stated.
Allen Willoughby: This witness, a thirteen-year-old boy who lived in the apartment about that of the defendant, testified that on the morning in question he heard the defendant say: He had heard no shot. He dressed and went downstairs to the defendant's apartment, where he saw the deceased on the bed and the defendant crying and saying over and over: 'I shot Tootsie.'
Exceptions 1, 2 and 3, below summarized, will be considered together. They charge that the trial judge committed error:
Exception 1. 'In admitting the testimony of the state's witnesses tending to establish an extra-judicial admission of the defendant: because the state did not, by evidence aliunde said admission, establish the corpus delicit.'
Exception 2. In refusing defendant's motion for directed verdict: because at that stage of the trial there was no proof of the corpus delicti other than that afforded by the defendant's admission.
Exception 3. In refusing defendant's motion for new trial: because, except for his admissions, the evidence of his guilt was circumstantial and insufficient to point to his guilt to the exclusion of any other reasonable hypothesis.
These exceptions cannot be sustained. For support of the first and second, appellant invokes the well-established rule that a conviction cannot be had on the extra-judicial confessions of the defendant uncorroborated by proof aliunde of the corpus delicti. State v. Blocker, 205 S.C. 303, 31 S.E.2d 908; State v. Teal, 225 S.C. 472, 82 S.E.2d 787. In a homicide case, the corpus delicti consists of two elements,--the death of the person killed, and its causation by the criminal act of another. These elements may be sufficiently proven by circumstantial evidence where, as is often the case, that is the best evidence obtainable. State v. Epes, 209 S.C. 246, 39 S.E.2d 769; State v. Thomas, 222 S.C. 484, 73 S.E.2d 722. Here, the first element was directly proven; and in our opinion the evidence for the state was, entirely apart from the defendant's admissions, quite sufficient to carry to the jury the issue of criminal agency.
It was not for the trial judge, as the third exception suggests, to weigh the evidence or to evaluate the credibility of the witnesses. Where circumstantial evidence is relied upon by the state in a criminal case, there must be positive proof of facts and circumstances which, taken together, warrant inference of guilt to a moral certainty, to the exclusion of any other reasonable hypothesis. State v. Kimbrell, 191 S.C. 238, 4 S.E.2d 121. But if there is any evidence tending to support such inference, it is the duty of the trial judge to submit the issue to the jury. State v. Edwards, 173 S.C. 161, 175 S.E. 277. We think that he properly did so in the instant case.
Error in refusal of defendant's motion for new trial is charged in two other exceptions:
Exception 4: ...
To continue reading
Request your trial
-
McGee v. Warden of Lieber Corr. Inst.
... ... Frankie ... Lee McGee (“Petitioner”) is a state inmate who ... filed this petition for a writ of habeas corpus pursuant to ... 28 ... the case. Brisbon; McIver ... The argument was not ... objectionable and any objection would have been overruled. As ... ...
-
State v. Cherry
...of God, 341 S.C. 320, 338 n. 6, 534 S.E.2d 672, 681 n. 6 (2000); State v. Owens, 291 S.C. 116, 352 S.E.2d 474 (1987); State v. McIver, 238 S.C. 401, 120 S.E.2d 393 (1961); State v. Dornberg, 192 S.C. 513, 7 S.E.2d 467 Recently, in State v. Grippon, this Court approved another charge that ma......
-
State v. Greene
...In all prosecutions for homicide, the State must prove the defendant caused the death of the victim. See State v. McIver , 238 S.C. 401, 406, 120 S.E.2d 393, 395 (1961) ("In a homicide case, the corpus delicti consists of two elements—the death of the person killed, and its causation by the......
-
Vacation Time of Hilton Head Island, Inc. v. Lighthouse Realty, Inc.
...shortly thereafter with a verdict in favor of Vacation Time. The question here is not entirely a novel one. In State v. McIver, 238 S.C. 401, 120 S.E.2d 393 (1961), the trial judge absented himself during the main portion of the solicitor's argument. Defense counsel argued on appeal that th......