State v. McPhail

• Citation: 105 S.E. 638,115 S.C. 333
• Decision Date: 20 December 1920
• Docket Number: 10534.
• Parties: STATE v. MCPHAIL.
• Court: United States State Supreme Court of South Carolina

105 S.E. 638

115 S.C. 333

STATE v. MCPHAIL.

No. 10534.

Supreme Court of South Carolina

December 20, 1920

Appeal from General Sessions Circuit Court of Bamberg County; John S. Wilson, Judge.

W. L McPhail was convicted of manslaughter, and he appeals. Affirmed.

Following are the exceptions referred to in the opinion:

(1) Because his honor erred in permitting the prosecuting witness, Mrs. Walker (now Mrs. Hayes), to testify as to the alleged conversation in the express office at Midway between the defendant and the deceased, about three weeks or a month before the homicide, in which the defendant was sought to be connected with a shipment of a certain whisky, and wherein it is alleged the defendant walked up to him with an oath stating that he had better attend to his own business whereas said testimony should have been excluded; the same being too remote to establish motive for the homicide, and was irrelevant and incompetent, and prejudicial to the defendant.

(2) That his honor erred in excluding defendant's counsel's question on the cross-examination of said witness, to wit, i. e., "Didn't you, on the afternoon your husband was killed, curse Drew Steadley and call him vile epithets, and after seeing him didn't you leave the store?" whereas, the said question was proper to establish the mental attitude of the prosecuting witness and her general disposition for violence upon the eve of the tragedy, and the defendant should have had the benefit of the jury's consideration of the prosecuting witness' violent conduct leading up to the circumstances and acts actually surrounding the subsequent killing.

(3) Because his honor erred in ruling out as irrelevant the defendant's counsel's question of the same witness i. e., "Didn't you, at the time you left Drew Steadley's store, on the afternoon before your husband was killed, go home and get your pistol and start to his store to kill him?" whereas, the said inquiry was proper to establish the conduct, mental attitude, and violence of the prosecuting witness immediately preceding the homicide, committed in the dark and under the circumstances testified to in the case.

(4) Because his honor erred in ruling out as incompetent the defendant's counsel's question, i. e., "Didn't you, within a year's time before your husband's death, strike him with a hoe?" whereas, the testimony should have been admitted to establish the relation of deceased and bitterness existing between the prosecuting witness and her deceased husband, and for that reason would not be remote.

(5) Because his honor erred, over the defendant's objection, in allowing the sheriff, S. G. Ray, to testify as to the deceased being in his employ and to catch the defendant for selling whisky about six weeks before his death; whereas, he should have excluded such testimony, as being irrevelant and prejudicial to the defendant, and was calculated to influence the jury in his trial, by injecting the insinuations of other violations of the law of which he may have been suspected, and was an unjustifiable attempt to establish motive founded upon a bare suspicion and inconsistent with the friendship existing between the deceased and the defendant which is uncontradicted by the testimony.

(6) Because his Honor erred, over the defendant's objection, in permitting the witness Dewy Bessinger to testify, "I heard Mr. Mac say that if he was ever tried again it would not be for selling whisky, but for killing the man for reporting him;" whereas he should have excluded such testimony, for the reason that nowhere does the evidence show that McPhail sold whisky or had anything to do with whisky beyond drinking the same, and such testimony was calculated to prejudice the jury in the trial of his life by the introduction of the inflammable character of evidence, the same being in no wise responsible to the charge for which he was being tried.

(7) Because his honor erred in refusing to permit the defendant to contradict the prosecuting witness, Mrs. Hayes, by asking the witness for the defense, W. S. Miley, the question, "Mr. Miley, I asked Mrs. Hayes this question yesterday, 'Mrs. Hayes, did you, while living in the town of Bamberg, in the presence of Mr. Miley, a police officer, standing in your own door with a gun in your hand, say to your husband, "I will cut you down with this gun." ' I ask you now, did she say this?'' whereas, the question should have been permitted and the answer given, to show the relationship existing between the prosecuting witness and her dead husband, indicating a settled hatred and violence toward him, whether the same was immediately before the killing or not, it being perfectly competent to establish her general attitude toward her husband and to throw light upon who may possibly have been his murderer, and to relieve the defendant therefrom.

(8) Because his honor erred in refusing to allow the witness D. D. Steadley from answering the question whether or not Mrs. Walker threw a brick at him and cursed him on the afternoon of the killing; whereas the question was competent and relevant, and should have been answered, in order to ascertain the general violence of the prosecuting witness, not only against her husband, but against her neighbors, so as to establish her condition of mind at the time of the homicide upon the night of that afternoon.

(9) Because his honor erred in refusing to allow the witness D D. Steadley, in contradiction of the prosecuting witness, to testify as to threats against the said Steadley made on the afternoon of the night of the...