State v. Murphy

• Decision Date: 11 July 1896
• Citation: 25 S.E. 43,48 S.C. 1
• Parties: STATE v. MURPHY.
• Court: South Carolina Supreme Court

25 S.E. 43

48 S.C. 1

STATE v. MURPHY.

Supreme Court of South Carolina

July 11, 1896

Appeal from general sessions circuit court of Orangeburg county Buchanan, Judge.

Daniel C. Murphy was convicted of murder, and appeals. Affirmed.

Malcolm I. Browning, for appellant.

W. St Julien Jervey, for the State.

JONES J.

At the May term, 1895, of the court of general sessions for Orangeburg county, appellant, Daniel C. Murphy, was convicted for the murder of Robert Copes, the county treasurer, and was sentenced to be hanged on the 26th day of July, 1895. He appeals, alleging that the circuit court erred (1) in refusing to grant process to compel attendance of a witness residing in Georgia; (2) in refusing to grant a commission to examine said witness, and to compel the solicitor to consent thereto; (3) in refusing to continue the case until the attendance or testimony could be procured; (4) in requiring a juror to stand aside, and not permitting him to be presented to the defendant; (5) in admitting the testimony of a witness as to a conversation, overheard by said witness, between the defendant and another; (6) in allowing a witness for the state to testify that he would not believe a certain witness for the defendant upon his oath, the state's witness not knowing the general reputation of the defendant's witness for truth and veracity; (7) in admitting the testimony of a state's witness as to statements by a witness for defendant, without laying proper foundation therefor.

1. Upon information of the materiality of any witness within this state, the accused, in felonies, may have process to compel the attendance of such witness in his behalf. Rev. Cr. St. §§ 24, 45. But there is no authority for the issuance of compulsory process for a witness out of the jurisdiction of the courts of this state. Such a writ would be wholly nugatory beyond the limits of the state, and, of course could be ignored and disobeyed by all persons with impunity. There was no error, therefore, in refusing to attempt such a thing.

2. In criminal cases there is no statute in this state authorizing the issuance of a commission to take testimony of a witness out of the state, as in civil cases. While such commission might be issued in a criminal case by consent of parties ( State v. Bowen, 4 McCord, 254), the court has no authority to issue such commission without consent of parties. Since the accused has the constitutional right "to meet the witnesses against him face to face" (Const. 1868, art. 1, § 13), it is clear that neither the courts nor the legislature could authorize such examination of witnesses against him, on motion of the solicitor for the state, without his consent. Perhaps this, together with considerations of the danger of perjured testimony, the improbability of securing prompt action, and the opportunity for delay such mode of examination of witnesses abroad would afford to parties charged with crime, accounts for the failure of the legislature to provide for examination of witnesses beyond the limits of the state in behalf of the accused. Such examination must depend upon the consent of parties, and the solicitor and not the court represents the state in the matter. We know of no power which the court has to compel the solicitor to consent. It is clear the solicitor would not be subject to punishment for contempt of court if he refused consent. A compelled consent is no consent at all. The power to compel consent could only mean power to dispense with consent. This would lodge the right of consent in this matter in the court, and not in the solicitor. The court has power to continue a case from time to time to allow opportunity to procure the attendance of witnesses who may be out of the state in behalf of the accused. The exercise of this power might have effect to induce the solicitor to make choice between a continuance of the case from time to time and a consent to the taking of the deposition of defendant's witness out of the state. But this power would not be exercised for this purpose except upon a strong showing that justice could not be otherwise subserved. In the case of State v. Bowen, 4 McCord, 256, Judge Nott said: "In Chitty's Criminal Law it is said 'When a witness resides abroad, or is about to leave the country before trial, he may, by consent of both parties, be examined on interrogatories. But this cannot be done if the defendant refuses, because the evidence is not the best which the case admits. And when a party in a case where consent is necessary refuses to grant it, the court will put off the trial, to give time for the attendance of the witnesses.' 1 Chit. Cr. Law, 612. And in the case of Mostyn v. Fabrigas, Cowp. 174, Lord Mansfield mentions the case of a woman who, being indicted, alleged that her witnesses resided in Scotland, and that she could not compel them to come up to give evidence. The court compelled the prosecutor to consent that all the witnesses might be examined; and declared that they would put off the trial of the indictment from time to time forever, unless the prosecutor had so consented." In the case of State v. Smith, 8 Rich. Law, 461, Judge Johnson said: "I remember one instance in which the late Mr. Justice Nott ordered a prosecution to be stayed, unless the prosecuting officer would consent to take the examination of a witness who resided out of the state, by commission, on his being fully satisfied that his evidence was material to the defense of the accused; and, upon a clear case made, I am disposed to think that precedent deserved to be followed." Italics ours. The question, then, resolves itself into the question whether, under the circumstances, ...