State v. Nance

• Decision Date: 28 June 1886
• Citation: 25 S.C. 168
• Parties: STATE v. NANCE.
• Court: South Carolina Supreme Court

25 S.C. 168

STATE v. NANCE.

Supreme Court of South Carolina.

June 28, 1886

1. The Circuit Judge is the trier of the competency of a juror challenged for cause. The law does not prescribe the questions to be asked, but only indicates the points upon which the judge is to be satisfied; and if counsel are not satisfied with the interrogatories propounded, he should object at the time.

2. Where the deceased, on the day before his death, said he never expected to get over his wound, and stated who had inflicted it, and soon thereafter became speechless, the judge did not err in receiving this statement as a dying declaration.

3. During the trial some of the jurors retired, for a few moments, to their room, in which some of the witnesses who had testified were sitting, but it did not appear that any communication passed between them. Held , that this was not such an irregularity as would avoid the verdict.

4. The testimony being that the accused, with others, attacked the house of the deceased at midnight and having been driven off renewed the attack, whereupon deceased rushed out again attempting to drive the assailants off, and received the wound from which he died, the Circuit Judge did not err in charging the jury that there was no testimony as to self defence or such as would raise a question of manslaughter.

5. Where the defendant relies upon an alibi there must be a preponderance of evidence sufficient to establish such a defence, or to raise a reasonable doubt.

6. The power to grant or refuse a motion for new trial belongs exclusively to the Circuit Judge, and from his decision on the subject there is no appeal to this court. This applies to a motion for new trial on the ground of newly discovered evidence.

Before WALLACE, J., Newberry, July, 1885.

The opinion states the case.

Messrs. Goggans & Herbert and John B Jones , for appellant.

Mr. Solicitor Duncan , contra.

OPINION

MR JUSTICE MCGOWAN.

At the July term of the court for Newberry County a true bill was found against three women, viz.: Vinnie Nance, Martha Lyles, and Amy Rutherford, for the murder of an old colored man, Daniel Kleckley, by striking him with a " " rock" or stone. Upon motion of defendants' counsel, the presiding judge ordered a severance, and Vinnie Nance alone was put upon trial. At the request of the counsel for the defendant the jurors were sworn on their voir dire . When a colored juror was called the presiding judge propounded the usual question as to " relationship," & c., to the prisoner; but, the accused being a negro woman, when a white juror was called he omitted the question as to " relationship," and simply asked him " if he knew of any reason why he could not find a just verdict in the case, according to the evidence," and being answered in the negative, ordered him to be presented. No objection was made, at the time, to this mode of proceeding or any motion made " to introduce any other competent evidence in support of objection to any juror."

Sarah Ann Douglass testified " that on the night of June 27, 1885, between the hours of 12 and 1 o'clock, three women came to the house of her grandfather the deceased; that she was waked by an altercation between the deceased and one of the women, whom she recognized as Martha Lyles; that when she came out the three women had hold of the old man and were pulling him down towards the woods; that she and her brother (a boy of about 14) and another boy ran out of the house after them; that she ran out with an axe in her hands and they chased the women off, after which she and the deceased and the two boys went back into the house and barricaded the door. Three women came back and attempted to force open the door, but failed. The women then walked round the house, and finally deceased snatched the door open and they all rushed out at them again to run them off from the house. Then one of the women, whom she recognized as Vinnie Nance, the defendant, threw a rock and knocked the old man down. The women then left and she and the boys carried the old man into the house where he died on July 1st, four days thereafter." She testified positively " that she recognized two of the women as Martha Lyles and Vinnie Nance; that she did not recognize the third; and that she saw Vinnie Nance, the defendant, throw the rock that struck down the deceased."

The solicitor then offered in evidence, as the dying declarations of the deceased, a statement made under the following circumstances: Robert Davidson was with deceased several days after he received the injury and until he died, certainly on Tuesday and Wednesday, the latter being the day on which he died. On Tuesday morning, just before deceased became speechless, he said that " he was very badly wounded and he never expected to get over it. Said he never expected to get over this wound," and in the same conversation he said that " big Martha and Vinnie Nance did him so-murdered him up-beat him." Motion to exclude the testimony was overruled.

The defendant introduced testimony principally for the purpose of establishing an alibi . The State offered nothing in reply. Before the commencement of the argument, several of the jurors retired for a short time to the jury room, in which the witnesses for the State had been confined during the trial, several of whom were still in the room. But it did not appear that there was any communication between the parties, thus accidentally thrown together in the same room for a few moments.

There were no requests to charge. The case being submitted to them, the jury rendered a verdict of " guilty." The counsel of the defendant made a motion for a new trial, and, that being refused, they now appeal to this court upon the same grounds, which we will now proceed to consider in their order.

The defendant insists that his honor erred in overruling the motion for a new trial, upon each of the following grounds: First. Because the jurors on their voir dire were not properly examined, the only question asked them being, " Do you know any reason why you cannot find in this case, a just verdict according to the evidence?" Section 2261 of the General Statutes provides that, " The court shall, on motion of either party in suit, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection," & c. In all the cases there is concurrence in the view that the Circuit Judge is the trier to decide the question made by the challenge of a juror for cause. See State v. Coleman , 20 S.C. 450.

We do not understand that the law prescribes any particular formula of questions required to be propounded by the Circuit Judge, but only such as will satisfy him upon certain points indicated. The words of the provision are, " to know whether," & c. If the counsel for the accused considered the examination by the court as perfunctory or otherwise unsatisfactory, the objection should have been made at the time, or other evidence offered to support the objections to any particular juror. It does not appear that there is even an allegation of a well grounded objection to a single juror, who was sworn in the case. When a white juror was called, it seems that the judge did not consider it necessary to make enquiry whether he was " related" to the accused, who was a negro woman, and we cannot say that such omission was error of law. " The presiding judge must determine on the character of the questions proposed and when the examination shall close." State v. Coleman , 8 S.C. 239.

Second. " Because certain statements alleged to have been made by the deceased were improperly admitted as dying declarations." The rule is well settled that, when one who has received a wound, from...