State v. Osborne
| Decision Date | 06 July 1942 |
| Docket Number | 15438. |
| Citation | 21 S.E.2d 178,200 S.C. 504 |
| Parties | STATE v. OSBORNE. |
| Court | South Carolina Supreme Court |
Frank P. Cave and W. H. Harley, both of Barnwell, for appellant.
B D. Carter, of Bamberg, and Solomon Blatt and Edgar A. Brown both of Barnwell, for respondent.
The defendant above named, Sammie Osborne, was tried for murder at the September, 1941, Term of the Court of General Sessions for Barnwell County before Honorable J. Strom Thurmond presiding Judge, and a jury, and was found guilty. His motion for a new trial having been overruled he was sentenced to death by electrocution; and the cause comes before this Court upon his appeal from the judgment of the Circuit Court.
It appears that on the first day of the term, to wit, September 15, 1941, the defendant Sammie Osborne and one Girard Davis, negro youths aged 17 and 18 years, respectively, were jointly indicted for the murder of W. P. Walker, a white farmer of Barnwell County, upon whose farm they were sharecroppers. The death of Walker was alleged in the indictment to have occurred on Sunday, August 17, 1941, from a gunshot wound inflicted by Sammie Osborne. The defendants were without counsel and the presiding Judge appointed Messrs. Frank P. Cave and W. H. Harley of the Barnwell bar to defend them. On Thursday, September 18, the case was called for trial as to Sammie Osborne, the Solicitor having elected to proceed against him only at that time (and he will be hereinafter referred to as the defendant). Thereupon a motion for a change of venue upon the ground that the defendant could not obtain a fair and impartial trial in Barnwell County was made upon certain affidavits then submitted to the Court. A number of witnesses were orally examined before the Court in opposition to the motion, and at the suggestion of counsel for the defendant one other witness was also called and examined. After hearing all the testimony Judge Thurmond overruled the motion, stating that he was convinced that the defendant could get a fair and impartial trial in Barnwell County.
The trial thereupon proceeded, and it appears from the evidence that the defendant Osborne and Davis, his co-defendant in the indictment, were working as sharecroppers on the farm of W. P. Walker, and that they lived in separate houses, Osborne's house being about one-fourth of a mile and the Davis house about one-eighth of a mile from the Walker home, which was located between these two tenant houses. The homicide appears to have occurred sometime during the morning of Sunday, August 17, 1941, and the body of Mr. Walker was found in a bedroom of the Davis tenant house, at the foot of the bed, the deceased having been shot in the face with a shotgun, resulting in his immediate death.
The State relied considerably upon alleged admissions or confessions of the defendant, and these oral "confessions" were admitted over the objection of counsel for the defendant. And during the examination of the defendant himself, a written statement admittedly signed by him was also introduced in evidence by the State over objection, and the same is as follows:
"Guroy" Davis, mentioned in this statement, was evidently intended for Girard Davis.
The note referred to in the statement, which the defendant also admitted writing, was written mainly with pencil printed capitals on a large piece of paper attached to the top of a shoe box, and is as follows:
There was testimony that this note was afterwards found at the home of Mr. Walker.
The defendant testified that on the day before the killing Mr. Walker forced him to work although his foot was in an injured condition, and that Walker at that time struck him with a stick and (quoting his language) "shot by my head three times" with a pistol, besides threatening him. The defendant says that after this occurred he wrote the note above quoted and later in the day moved his clothes over to the Davis house, and that on the next morning he was sleeping in the bedroom there with Davis when Mr. Walker came to the Davis house and entered the bedroom, having a stick in one hand and a pistol in the other, and that he struck the defendant twice with the stick, whereupon the defendant reached for the shotgun which he had in the room and shot him in the face, thus causing his instantaneous death.
Of course, the foregoing statement as to the testimony in the case is quite incomplete and does not attempt to deal with any conflicts in the evidence, arising circumstantially or otherwise, but we think it will be sufficient for the purposes of this appeal.
We may, however, mention one matter which formed the basis of a motion for a mistrial made during the progress of adducing the evidence, which was refused by the trial Judge. It appears that the defendant testified that he had "rung" (or "wrung") the shell which was used in shooting Mr. Walker; that is to say, he had cut around the shell in a manner to make it more effective in certain respects (although he denied that he then had in mind the shooting of Mr. Walker). In the cross-examination of the defendant on this point one of the attorneys for the State used before the jury, presumably by way of illustration, some other "rung" shell which the Court had previously excluded, and the Court again sustained defendant's objection thereto. It seems, however, that another question was nevertheless later asked with regard to the matter by State's counsel, with like exhibition of the shell, whereupon the attorneys for the defendant moved for a mistrial, alleging that the effect upon the jury was prejudicial. While the motion was refused the jury were instructed to disregard the shell which had thus been exhibited to them.
There are eleven exceptions, but counsel for appellant in their brief state the questions presented as being six in number. Actually, however, there are only five such questions discussed, because the sixth relates to the refusal of the motion for a new trial, and that motion merely repeated certain of the other grounds. Stating the questions presented briefly, and in a somewhat different order from that followed by counsel for the appellant, they charge error:
1. In refusing defendant's motion for a change of venue;
2. In admitting in evidence a purported drawing of the house where the homicide occurred;
3. In refusing defendant's motion for a mistrial on the ground hereinbefore stated;
4. In refusing to direct a verdict for the defendant; and
5. In the charge to the jury with reference to self-defense and defense of habitation.
Each of these questions will now be discussed by us.
The law as to motions for a change of venue in a criminal case is so well stated in the recent case of State v. Thomas, 198 S.C. 519, 18 S.E.2d 369, 371, opinion by Mr. Justice Fishburne, that no further citation of authority is necessary. We quote the following from this opinion:
"Where an application is made, by one accused of crime for a change of venue on the ground that an impartial jury cannot be obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where, after hearing evidence, the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to change the venue, unless it is made to appear that there has been an abuse of discretion."
The record in the instant case shows that Judge Thurmond's conduct measured up to the standard above stated in regard to this matter; and it is manifest that there was no abuse of discretion on his part in overruling the motion. Indeed, it is apparent that the decided preponderance of the testimony supported his ruling.
In the course of the testimony of the physician who examined the body of the deceased in the house where the homicide took place the State offered in evidence a drawing of the house and the surrounding premises showing the bedroom and the location of the body at the foot of the bed in that room. The drawing is a pencil one and does not purport to be drawn to scale. The doctor at first appeared to question the accuracy of the drawing in a certain particular, but later said that it was a correct representation of the house and the way the body was lying; and there was other evidence that the drawing was correct, although the person who made the same was not sworn. We think the objection of the defendant to the introduction of the drawing was properly overruled. The matter was so clearly one in the discretion of the trial Judge that no citation of authority is required.
We think the statement hereinbefore contained with reference to the motion for a mistrial is sufficient to show that the matter was one within the discretion of the learned presiding Judge, and that he rightly overruled the motion in the exercise of such...
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