State v. Merriman.1

• Decision Date: 20 January 1891
• Citation: 12 S.E. 619
• Parties: State . v. Merriman.1
• Court: South Carolina Supreme Court

12 S.E. 619

State .

v.Merriman.¹

Supreme Court of South Carolina.

Jan. 20, 1891.

Murder—Challenges to Array — Exemptions-Witnesses—Cross-Examination— Expert Evidence.

1. On the call of a case for murder defendant challenged the array of both petit and grand juries, and his challenges were overruled, and a continuance had. At the next term the case was called before a different circuit judge, and the challenges were again presented. The judge stated that "as the same questions had been presented for the consideration" of his colleague, who "had ruled upon them, he would not disturb the ruling." Held, that this was not a ruling that the judge was bound by the previous ruling, but merely that he would not disturb it.

2. Under Gen. St. S. C. § 2234, providing for the appointment of a jury commissioner, and declaring that he, "with the county auditor and chairman of the board of county commissioners or a majority of the same, shall constitute a board of jury commissioners, " etc., a drawing for jury lists, made in the absence of the auditor by the other two commissioners, is valid.

3. The fact that a person who sometimes acted as the auditor's deputy was present, and furnished the names from the auditor's books, did not invalidate the drawing when he did not otherwise participate therein.

4. Under Gen. St. S. C. § 2248, providing that jurors shall be drawn "in the presence of the clerk of the court and the sheriff of the county, " and since the law requires the commissioners to exclude from the list the names of persons who are not of "good moral character" and "good judgment, " the commissioners are justified in excluding the public from the drawings.

5. The attorneys of a party have no right to be present at the drawing, or to inspect the jury-list, or to be furnished with a copy thereof, or to be informed whether any names have been rejected by the commissioners.

6. Under Gen. St. S. C. § 2237, as amended by act of 1886, (19 St. 599,) requiring the commissioners, on a special venire, to place in the tales-box "the names of 150 persons qualified by law to serve as jurors, " it is no ground of challenge to the array that two of the slips containing names were by inadvertence, duplicates of others, so that there were only 148 names in the box. •

7. It is no ground of challenge to the array on special venire that some of the persons whose names are put in the box are exempt from jury service, since exemption is a privilege personal to the juror, and he may waive it.

8. Under the statute, the question whether a Juror examined on his voir dire is indifferentor otherwise, when it involves a mere question of fact, is addressed exclusively to the trial court.

9. Under the statute, which provides that "on motion of either party" the court shall examine a juror as to whether he is related to either party, an omission to so examine him cannot be assigned as error when no motion therefor is made.

10. It is within the discretion of the trial judge to reject a juror because his father and the grandfather of the accused were brothers.

11. It is competent, on cross-examination, for the purpose of attacking the witness' credibility, to ask him whether he has ever been convicted of larceny.

12. On a trial for murder it is competent on cross-examination of a witness for the defense, for the purpose of showing bias of mind, to ask whether he did not say to a person named that the deceased could be better spared than any other man in the community.

13. It was not prejudicial error to ask a witness for the defense, on cross-examination, whether he had not told a person named that when he heard the report of the gun he knew the deceased was dead, when the question was answered in the negative.

14. A person who has taken a course of lectures at a medical college, and been a practicing physician for 10 years, is competent to testify as an expert, though he is not a licensed physician.

15. It was not prejudicial error to permit an unqualified person to testify as an expert physician that the wounds on deceased's body were sufficient to cause death, when the fact was not disputed, and had bean fully proved by an undoubted expert.

16. A physician was asked whether he could tell from the quantity and appearance of blood in the chest whether the body had been moved after the hemorrhage took place, and answered that if it had been he thought there would have been some hemorrhage at the mouth and nose, and gave as reasons for his opinion the condition in which he found the lungs, bronchial tubes, etc. Held, that this was legitimate expert evidence.

17. It was competent for the physician who made the post mortem examination, after stating the facts revealed thereby, to state his opinion that the muzzle of the gun must have been in a higher position than the person shot.

18. A witness for the defense, who was originally included in the indictment with defendant, but as to whom it has been nolled, may be required, on cross-examination, to state what he said when examined before the coroner, if he was not under arrest at that time.

19. A witness who testified for the defense that the deceased was of a violent character, and the accused of a peaceable character, may be asked, on cross-examination, as to his own character for violence, for the purpose of showing his ability to judge concerning that of others.

20. A witness for the defense, who testifies that defendant is of a peaceable character, may be asked, on cross-examination, if he knows of certain particular acts of violence committed by defendant, for the purpose of showing that he gives defendant a character inconsistent with that inferable from facts known to him.

21. No prejudice could result to defendant from permitting the state, on cross-examination, to ask questions designed to elicit declarations made to the witness by defendant in regard to his difficulties with a third person, when the witness states that no such declarations were made.

22. An accused person, who becomes a witness in his own behalf, assumes the position of an ordinary witness; and whore he has put his character for peaceableness in issue, he may be cross-examined as to particular acts of violence which he is alleged to have committed.

23. He may also be asked whether he ever told persons named of an act of violence which he at one time purposed, but was prevented from consummating, with a view to contradicting him by the evidence of the persons named.

Appeal from general sessions circuit court of Chesterfield county; Wallace, Judge.

Trial of William D. Merriman for the murder of Archibald G. Douglas, in Chesterfield county, on May 6, 1889. The indictment was found against defendant together with A. B. Merriman, Burrel M. Merriman, and James Pigg. After a continuance a nolle prosequi was entered as to all except defendant. The court gave the following charge:

"It is admitted by the defense that the deceased was killed by the defendant. Your duty, therefore, will be to find what was the nature of his act. To enable you to do that the law requires that I shall state to you the legal principles that grow out of any possible view of the testimony. You are to determine the truth of the facts; to decide for yourselves what were the facts that transpired on the day that Douglass was killed; to apply those facts to the legal rules I shall give you, and decide whether the act was murder, manslaughter, or excusable homicide. Yon will see, gentlemen, that your duty is to decide what is the truth of the facts. I tell you what the law is. The law requires that you shall take that from me absolutely. You don't pass on the law. I state the law that you may know what it is, in order that, having determined the facts, you may apply the facts to the law I state to you, and decide what those facts make out. Your finding is not a judgment. The judgment follows upon your finding, whatever that may be. Now, the defense have submitted several requests to charge, which I shall consider first. They request that I shall charge you: '(1) That if you believe from the evidence that the defendant had reason to apprehend, or did really apprehend, from the previous declarations of the deceased, his attitude at the time, or his being armed with a deadly weapon, that his life was endangered, or great bodily harm was threatened, and he fired under the circumstances, his act is excusable.' I cannot charge you that, because, in order to make out a case of self-defense, more is required than is stated in that request. What is required I will state to you in a subsequent part of the charge. '(2) That if from all the evidence the jury have reasonable doubts as to any material matter, the defendant is entitled to have it solved in his favor.' I charge you that that is the law. '(3) If defendant believed deceased was armed with a deadly weapon, and approached him in a manner indicating his intention to execute a threat of bodily injury or death against him, he was excusable in firing.' I do not charge you that, because that is another form on the part of the defense of stating what they conceive to be the law of self-defense. In order to make out a case of self-defense more is required than that, and I will state it to you further on. '(4) That uncommunicated threats are admitted to show the animus or motive of the deceased at the time of the homicide, if made a reasonable time before the fact.' Icharge you that. '(5) That communicated threats, besides being evidence of the ani- mus of the deceased, are admitted to show the ground of fear and apprehension of the attack by the deceased according to the threats, and justify the defendant in preparing to resist the attack according to the character of the threats.' 1 so charge you, —that is, that communicated threats will justify the defendant in preparing to resist an attack, because preparing to resist an attack is not criminal. '(6) If conviction is sought upon evidence in whole or in part...