State v. Murphy
| Decision Date | 04 November 1949 |
| Docket Number | 16273. |
| Parties | STATE v. MURPHY. |
| Court | South Carolina Supreme Court |
Hemphill & Hemphill, Chester, Coleman & Martin, Winnsboro, for appellant.
W. G. Finley, Sol., York, C. T. Graydon, Columbia McDonald & McDonald, Winnsboro, for respondent.
On an indictment charging that appellant, Mattie Bell Murphy feloniously and with malice aforethought did, on April 20 1946, shoot, kill and murder one, Richard Cook in Fairfield County, said appellant was put upon trial in the Court of General Sessions in said County at the June, 1947, term of the Court. The trial resulted in her conviction of manslaughter and she was sentenced to serve for ten years in the usual form of such a sentence. She now seeks a reversal of the judgment and sentence, and a new trial.
The fact that at the time and place alleged in the indictment the deceased met his death from a wound inflicted by the appellant while she was intentionally shooting at him with a pistol, is admitted. Her defense was that she shot him in the defense of another (her mother, Nannie Graves), and in self-defense.
In that the appellant on this appeal does not contend that the trial Judge was in error in submitting the issue of her guilt to the jury, it will be unnecessary to summarize the testimony generally adduced at the trial, either pro or con, although we will necessarily make reference to certain portions of the testimony and matters occurring during the trial to which the exceptions relate.
Appellant states the 'Questions Involved' (Respondent did not file printed brief) to be:
'1. Was it a reversible error for the presiding Judge to deny defendant, pleading self-defense, the privilege of proving the character and reputation of the deceased?
'2. Was it error for the Court to allow the Solicitor to ask leading questions which suggested the answer?
'3. Was it error for the presiding Judge to exclude from the record the statements of the defendant to the police officer immediately after the shooting occurred, since the same was a part of the res gestae?
'4. Was the conduct of counsel for the State in the cross examination of certain witnesses of the appellant prejudicial?
Appellant's first question is stated too broadly, and is not accurate. During the trial of the case the appellant was permitted to adduce testimony that the reputation of the deceased for turbulence and violence was bad; and further, that the deceased had been convicted of murde, with recommendation to mercy, and was out of prison on parole. She was permitted to prove the reputation of the deceased in the accepted manner in the Courts of this State, and that she feared him; and in the cross-examination of character witnesses placed on the witness stand by the respondent the appellant was permitted to show the conviction of the deceased of murder, and that he had been paroled.
The exception upon which appellant's first question is bottomed is inaccurate and too general under the circumstances. The trial Judge did refuse to permit the introduction in evidence of the judgment roll showing the conviction of the deceased of the crime of murder, with recommendation to mercy, and the life sentence imposed, but as aforestated, the appellant was permitted to prove that the reputation of the deceased for turbulence and violence was bad, and on cross-examination, to show his conviction of the crime of murder. If it be conceded, without so deciding, that the judgment roll showing the conviction of the deceased for murder was the best evidence thereof, and that the proof of one's reputation is ofttime far afield from the true facts, although accepted as one of the guiding rules in dealing with individuals, yet it cannot be said that the appellant here was prejudiced by the refusal to admit this judgment roll. Of course, had the deceased been alive and a witness in the case, the judgment roll would have been admissible solely as to his credibility. Section 1012-1, Code of 1942; State v. Williams (State v. Van Williams), 212 S.C. 110, 46 S.E.2d 665.
What we have said hereinabove is likewise applicable to the trial Judge refusing to permit the witness, W. E. Gunter, to go into details. It is obvious that this witness intended to bring out that the deceased had been convicted of murder, but such testimony was thereafter admitted in evidence, and the appellant had the advantage thereof.
We find no basis for appellant's second question. The trial Judge sustained her objections to the leading questions asked by the Solicitor and/or counsel assisting him. If opposing counsel persist in asking leading questions, although ruled out, then the aggrieved party, if he considers his cause injured thereby, should move for a mistrial. We do not find in this record where there was sufficient cause to invoke such a remedy. While on this subject, we desire to again state that it is seldom that the prefacing of a question by the phrase 'whether or not' relating to a material matter, removes it from the inhibited class of a leading question; and invite attention to the opinion of this Court authored by Mr. Justice Stukes in State v. Cook, 204 S.C. 295, 28 S.E.2d 842.
Complaint is made by the appellant that the police officer to whom she reported the shooting was not allowed to testify that she had gone to him for protection and so stated when she reported the difficulty. The appellant had traveled one-half mile after the shooting in order to reach the presence of this police officer and, if such statement was made to him, it could just as well have been a self-serving declaration made with deliberate design, and therefore does not come within the res gestae rule. Moreover, this police officer testified that appellant didn't tell him 'how it happened at all.' The statement that she had gone to the officer for protection could not have elucidated the difficulty, and cannot be said to have been spontaneous. The cited cases of State v. Martin, 94 S.C. 92, 77 S.E. 721, State v. Burton, 111 S.C. 526, 98 S.E. 856, and State v. Long, 186 S.C. 439, 195 S.E. 624, lend no aid to the appellant.
The fourth question has given us much concern, especially in the light of the fact that even the severe censuring of the form of the questions on the cross-examination of the witness, Norman Graves, conducted by Mr. McDonald, one of the counsel assisting the Solicitor in prosecuting the appellant, and nothing more, would in nowise benefit her. The State would still be in the position of obtaining a verdict of guilty of manslaughter in which this highly prejudicial and improper cross-examination of an eye witness to the tragedy on a very material matter could have largely influenced the jury. We quote from the record:
'Q. Did you hear any argument between your mother and Richard that night? A. Yes, sir, I heard him ask her to go up to the filling station.
'Q. I mean, in the store? A. Yes, sir, that was in the store when he asked her.
'Q. Did you hear any argument between your mother and Richard that night in the store? A. Yes, sir.
'Mr. Hemphill: Would be glad for you to introduce it; we haven't anything to hide.
'Q. That (indicating) is your signature? A. Yes, sir.
'Q. 'Did you hear any argument between Richard Cook and your mother?' A. 'No, sir, I didn't hear mother.' That is what you said at the inquest, wasn't it? Are you telling the truth now or were you lying then?
'Mr. Hemphill: I think that is prejudicial.
'The Court: He is attacking the witness' veracity.
'Mr. Hemphill: He can't attack his character.
...
To continue reading
Request your trial