State v. Nelson

• Decision Date: 08 February 1940
• Docket Number: 15012.
• Citation: 7 S.E.2d 72,192 S.C. 422
• Parties: STATE v. NELSON.
• Court: South Carolina Supreme Court

7 S.E.2d 72

192 S.C. 422

STATE v. NELSON.

No. 15012.

Supreme Court of South Carolina

February 8, 1940

C Yates Brown, of Spartanburg, for appellant.

Samuel R. Watt, Sol., of Spartanburg, for respondent.

FISHBURNE Justice.

On the 9th day of April, 1939, the dead body of Goldie Mae Chapman a child of nine years, was found about a mile from the town of Enoree, in Spartanburg County. Her body was lying partly submerged in a small branch, with limbs outstretched, face downward, and partly covered with heavy rocks. Enoree is a mill village where the deceased and her parents, and the defendant, resided. The testimony offered by the State tended to show that death had been brought about by smothering or suffocation several hours prior to the time the child was placed in the water. Suspicion pointed to the defendant and others as the perpetrators of the foul deed. The defendant was arrested and indicted upon the charge of murder. Her trial and conviction of manslaughter followed, and she now appeals to this Court.

The State introduced as a witness for the prosecution, Mrs Monroe Pace, the mother of the defendant. This witness lived at Clinton, but at the time of the homicide she was visiting another daughter at Enoree, Mrs. Tom Thomas. After a preliminary examination by the solicitor, he undertook to elicit from this witness testimony directly implicating the defendant with the commission of the crime; testimony to the effect that the defendant had confessed to the witness that she had smothered the deceased in the home of the defendant sometime between 2 and 3 o'clock on the afternoon of April 9th, and that the body which had been placed in a closet was thereafter removed after nightfall and taken from the house by her husband, Odie Nelson, and her brother-in-law, Tom Thomas. Mrs. Pace categorically denied that any such statements had been made to her by the defendant. She testified that she knew that her daughter had not committed the crime because she was at the home of the latter between 1 and 2 o'clock on April 9th, and remained there about one and one half or two hours. That when she reached her daughter's house, Goldie Mae Chapman was there and remained there until about 3 o'clock or later, when the witness, her husband, Monroe Pace, and her sons-in-law, Tom Thomas and Odie Nelson, together with the defendant and Goldie Mae, left the house and walked up the road. She testified that her husband and her sons-in-law went to a ball game, and that Goldie Mae went on up the road alone, in the direction of her home. Throughout the case the State sought to show that the child was not seen alive after entering the defendant's house.

Some portions of the testimony of Mrs. Pace being unfavorable to the prosecution, the solicitor stated to the Court that Mrs. Pace had been sworn and examined as a witness at the inquest held by the coroner of Spartanburg County over the body of the deceased, and that the testimony of the witness was altogether different in essential and material points from the statements of the witness given at the inquest. The solicitor stated further that he had been taken by surprise, and upon this ground asked for permission to cross-examine the witness.

Over the objection of counsel for the defense, the solicitor was thereupon allowed to cross-examine Mrs. Pace concerning her testimony at the coroner's inquest, and to repeat to her certain statements which the prosecution claimed she had made in her testimony at the inquest, materially different from her testimony on the trial; testimony which, as heretofore stated, directly implicated the defendant as the perpetrator of the crime charged in the indictment. And the solicitor was also permitted, over the objection of the defendant, to read at length the questions and answers contained in the examination of the witness taken at the coroner's inquest, and was allowed to ask the witness if she did not make the statements so read to her.

Error is assigned to the lower Court in permitting the cross-examination by the solicitor of Mrs. Pace, the State's own witness, and in this cross-examination allowing him to read before the jury testimony purported to have been given by her at the coroner's inquest.

It appears that before the announcement of the ruling complained of, counsel for appellant exhibited to the Court a written notice which had been served upon the solicitor prior to the trial, which plainly advised him that Mrs. Pace would not testify on the trial of the case as she had testified at the inquest. Attached to the notice, and also shown to the Court, was an affidavit of the witness which also had been served upon the solicitor, containing a full statement of what she would testify to at the trial, and which completely repudiated the testimony given by her at the inquest.

The error assigned is that under the guise of surprise, inadmissible testimony highly prejudicial to the defendant was admitted, and that the State was permitted to do indirectly that which could not be done directly. We may say in passing that the testimony of Mrs. Pace at the trial accorded with the statements contained in her affidavit.

It is a well established rule of evidence that a party is not concluded by the unfavorable testimony of his own witness but may prove his case by other evidence. He is not precluded from proving any facts relevant to the issue, by any competent evidence, though it be a direct contradiction of the testimony of a former witness called by him. And, generally, when a witness is an unwilling one, or hostile to the party calling him, or stands in a situation which makes him necessarily adverse to such party, his examination in chief may be allowed to assume something of...