State v. Prater
| Decision Date | 28 February 1887 |
| Citation | 2 S.E. 108,26 S.C. 198,26 S.C. 613 |
| Parties | STATE v. PRATER. |
| Court | South Carolina Supreme Court |
Appeal from circuit court, Orangeburg county.
Indictment for murder.
Malcom I. Browning and Thomas M. Raysor, for appellant.
W. St Julien and Jervey, Izlar & Glaze, for respondent.
The appellant, with two others, Bill Gordon and Titus Ferguson was indicted for murder, the charge in the indictment being that appellant fired the gun, and that the other two parties were present aiding and abetting. The jury rendered a general verdict of guilty, with a recommendation of Gordon and Ferguson to the mercy of the court. A motion for new trial was submitted to the circuit judge, who granted the motion as to Gordon and Ferguson, but refused it as to the appellant, who thereupon gave due notice of appeal upon several grounds, which will be considered in their order.
The first ground alleges error in allowing a challenge for cause made by the state to one of the jurors presented, upon the ground that he was surety on the recognizance of the defendant Gordon, in face of the fact that this juror, when examined on his voir dire, had sworn that he was not sensible of any-bias or prejudice in the cause, and that he had not expressed or formed any opinion therein. (It is perhaps proper to note here that in the printed "case," as prepared for argument in this court, it is stated that the juror, on his examination "showed" that he was not sensible of any bias, etc.; but at the hearing it was admitted that this was a misprint, and that the word should be "swore" instead of "showed.") It is quite clear that the mere fact that a given juror swears that he is not sensible of any bias would not be sufficient to qualify him to sit as a juror in a particular case; for, if that were the rule, then a close friend, or even a near relative, of the accused might, by simply swearing that he was not sensible of any bias, force himself upon the jury. Indeed, the very language of the statute (section 2261, Gen. St.) shows conclusively that the question is addressed to the discretion of the circuit court, and, if the judge of that court is not satisfied that the juror in question is indifferent in the cause, he should be rejected, and another called in his place. The language is: " If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called." This is the construction which has already been given to that statute in the case of State v. Dodson, 16 S.C. 459, and followed in the case of State v. Coleman, 20 S.C. 448. If, therefore, it appeared to the circuit judge, from the fact that the juror in question was surety on the recognizance of one of the defendants, or from any other fact appearing in the examination, that the juror was not indifferent in the cause, it was not only his right, but his duty, to reject the juror, and have another called in his place. The fact that the juror was not the surety of the appellant here, and might, therefore, have been wholly indifferent so far as Prater was concerned, cannot affect the question. The three parties were tried together, and, if any juror presented appeared not to be indifferent as to either one of the three, that was sufficient to warrant his rejection. The right of challenge secured to the accused does not carry with it the right of selection, but simply the right of rejection. If, therefore, the appellant had particularly desired to select the juror in question, and he had been challenged by either of the others, or had been deemed not indifferent as to either of the others, he could not properly be sworn as a juror in the case. State v. Wise, 7 Rich. 412; State v. Gill, 14 S.C. 411. The first exception cannot, therefore, be sustained.
The second exception was very properly abandoned by the counsel who so zealously and forcibly presented the case of the appellant here, as it is quite clear that it could not be sustained. [1]
The third exception is in the following language: "Because his honor erred in refusing evidence offered by defendant that Ben Toby, a witness for the state, had made two contradictory statements before the coroner as to facts testified to by said witness at the trial, relating to the whereabouts of Bill Gordon, one of the defendants, on the night of the killing of Andrew Jackson; the said witness having been interrogated concerning the same, and the deposition before the coroner having been put in evidence." It seems that on the trial of this case Ben Toby stated that he did not, when first interrogated by the coroner, deny seeing Gordon on the night the homicide was committed, and the testimony which was rejected was offered for the purpose of showing that Toby did so swear before the coroner. We are unable to see how the testimony which was rejected could possibly affect this appellant, and therefore, even if there was error in rejecting it, so far as Gordon was concerned, that would furnish no ground for a new trial in the case presented for our determination. But when we consider that the statute (section 2675, Gen. St.) expressly requires that "the testimony of all witnesses examined upon an inquest shall be taken down in writing by the coroner, and signed by the witnesses," and that the evidence so taken down shall be filed with the clerk, (section 719,) this would seem to constitute the best and highest evidence of what a witness may have testified to before the coroner, and that was already before the court. We do not think that this exception can be sustained.
The fourth exception is not as specific as it should be, but nevertheless, in a case of such gravity as this, we will not decline to consider it. As we understand the exception, the error complained of is that when Dr. Hydrick was placed upon the stand to sustain the character of Riley, one of the witnesses for the state, the usual formula employed in impeaching or sustaining the general character of a witness was not strictly pursued. We do not understand that any precise form of words in which a witness, offered to impeach or sustain the character of another witness, shall be interrogated, has ever been established so firmly as to require that such form shall be followed with rigid exactness. The case of Dollard v. Dollard, 1 Rice, Dig. 294, (not reported elsewhere,) itself shows this; for while that case declares that the most proper question is, "What is the general character of the witness, good or bad?" yet the case goes on to say that "some have thought it most expedient to ask, in the first instance, 'What is the general character as to veracity?' Now, although there can be no objection to such a question, as the inquiry relates to veracity, yet it is not as proper as the more general question, "etc. See, also, the remarks of O'Neall, J., in Anon., 1 Hill, 258. Also 1 Starkie, Ev. 145. It seems to us, therefore, that when a witness is offered, either for the purpose of impeaching or sustaining the general character of another, there is no set form of words which must be followed with rigid exactness in interrogating such witness. The important and material matter is whether the witness under examination is acquainted with the general character of the witness whose character is under scrutiny, and what that character is, and that information may be elicited by any form of interrogatory, not otherwise objectionable, whether it conforms strictly to any stereotyped formula or not.
The fifth exception--that his honor erred in permitting counsel ...
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