State v. Richburg
| Citation | 250 S.C. 451,158 S.E.2d 769 |
| Decision Date | 03 January 1968 |
| Docket Number | No. 18742,18742 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. Edward RICHBURG, Appellant. |
Matthew J. Perry, Columbia, W. Newton Pough, Zack E. Townsend, Orangeburg, for appellant.
Solicitor Julian S. Wolfe, Orangeburg, Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., J. C. Coleman, Columbia, for respondent.
The appellant, Edward Richburg, was convicted by a jury to the murder (without recommendation to mercy) of Orangeburg County Deputy Sheriff J. Leroy Myers and was sentenced to death. The killing occurred after the deputy gave motor-vehicular chase to the appellant because of an alleged traffic violation when the two came to a stop in front of the 'Crazy Baby', a place of business operated by the appellant. There was an exchange of gun fire; the appellant was wounded and the deputy was killed.
It is the contention of the State that the deputy was making a lawful arrest for a traffic violation committed in his presence, that the appellant refused to cooperate, went to his home nearby, procured a pistol, came back and maliciously killed the deputy.
It is the contention of the appellant that he did not have money to pay a fine and/or bond and offered to go to the judge with the deputy. He further contends that the deputy used unnecessary force to make the arrest by pushing and shoving, and 'snatched out his gun and I fell back and he shot me through the head * * *.' Appellant asserts that he thereupon went into his store building, got his pistol, came back outside the building, and after pleading with the deputy not to shoot him again, shot the officer in self-defense.
The case is before us on appeal as a result of twenty exceptions appearing in the transcript of record; however, we think that the eight questions set forth in appellant's brief fairly state the issues for determination by this court. They are quoted from the brief as follows:
'1. Whether the Court erred in receiving as evidence State's Exhibit No. 5 and of permitting the State to examine it's witnesses concerning the contents of same. (This exhibit is a written statement previously given by State's witness Thomas Lee Johnson).
'2. Whether the Court erred in refusing to hold that, on the evidence presented, Appellant shot the deceased in self-defense.
Since a new trial must be held it would serve no purpose to determine if jurors Garret and Boyleston should have been excused for cause (questions 7 and 8) because these jurors, even if by chance drawn again, would not be permitted to serve.
The State's exhibit 5 referred to in question 1 is a written statement allegedly given by State's witness Thomas Lee Johnson soon after the killing. This case had been tried previously, resulting in a mistrial because the jury was unable to agree on a verdict. Johnson was not called by either side as a witness in the first trial.
This witness was at the scene of the killing at the 'Crazy Baby' on the night of June 4, 1965. When he was called to the witness stand by the State he immediately began to deny pertinent knowledge of the shooting, whereupon the solicitor claimed surprise and after considerable testimony was taken in the absence of the jury, the trial judge declared the witness hostile and allowed the solicitor to cross-examine his own witness in the presence of the jury by reading to him substantially all of the statement, sentence by sentence, and asking him if he had made that statement. He denied having made all or substantially all of the statements read to him. At the same time he admitted having affixed his signature to the instrument.
Other witnesses for the State testified as to the voluntariness of the written statement and as to the witness' apparent understanding of the same.
Appellant's counsel made timely objection to the solicitor's impeaching his own witness, and to introduction of the written statement as an exhibit.
It is the contention of counsel for the appellant that, except for the statements of this witness as contained in the instrument, there is no evidence of aggression on the part of the appellant and it is argued that the same was accordingly prejudicial.
The oral testimony of Johnson in court would, if believed, indicate that he knew nothing relevant about the real issues in this case.
Assuming, without deciding, that the State adequately showed surprise by the testimony (or rather lack of it) of witness Johnson, we are of the opinion that no evidence had been given which was detrimental to the State's case at the time of the claimed surprise. A fair summary of what the witness stated was that he did not know anything of real importance about the shooting. This is not like the case wherein a witness, to the surprise of counsel who called him, gives adverse and damaging testimony. In such case counsel may be permitted to cross-examine his onw witness for the purpose of curing the damage into which he was trapped. When the extent of the surprise is that a witness does not testify to what counsel has been led to believe him to know, the alleged detriment (if in fact there be any) can be rectified by merely withdrawing the witness.
The general rule is stated in 58 American Jurisprudence 445, Witnesses, Paragraph 799:
'Even where there is a real surprise it is not proper to permit the impeaching testimony to go beyond the only purpose for which it is admissible--the removal of the damage the surprise has caused.'
And in Paragraph 800:
'Where the testimony of a witness is not prejudicial to the party calling him, the credibility of the witness is immaterial and no reason exists for impeaching him. It is not sufficient that the witness merely fails to testify to a material fact, fails to give testimony favorable to the party producing him, gives no testimony adverse to him, gives irrelevant testimony, or denies that he has any knowledge of the matter involved, * * * 'In a criminal prosecution, the attorney for the state may not examine a witness for the prosecution as to prior inconsistent statements where such witness gives no testimony prejudicial to the state, as where he merely denies knowledge of the facts.'
In the case of State v. Nelson, 192 S.C. 422, 7 S.E.2d 72, this court said:
'Evidence of contradictory statements is theoretically evidence affecting credibility only, and is not substantive evidence of the facts embraced in the contradictory statements; but, nevertheless, evidence of inconsistent statements does often influence the jury, and, because of this, a party should not be allowed to interrogate his own witness in respect to previous inconsistent statements unless he has actually suffered surprise or entrapment.'
Included in the statement read to the jury is the following:
'When the shooting started, Mr. Myers was backing up, Mr. Richburg followed up to the trash can, both shooting, that is when I turned and ran in the place.'
On the stand he denied that he said this. We are of the opinion that State's counsel should not have been permitted to cross-examine witness Johnson under all of the facts shown by the record, and the same was prejudicial, such as to require a new trial.
Appellant contends by question 2 that the trial judge should have directed a verdict, as a matter of law, of not guilty in favor of the defendant on the plea of self-defense. When the evidence is susceptible of more than one reasonable inference, questions of fact must be submitted to the jury. We think jury issues were made...
To continue reading
Request your trial
-
State v. Plath
...the death penalty is equally spurious. The peremptory challenges may be exercised for any reason or no reason at all, State v. Richburg, 250 S.C. 451, 158 S.E.2d 769 (1968), appeal after remand, 253 S.C. 458, 171 S.E.2d 592 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2260, 26 L.Ed.2d 799 (......
-
State v. Oates
...witnesses and by Appellant,10 witness credibility was a critical factor in this case as it was in Butler and State v. Richburg , 250 S.C. 451, 459, 158 S.E.2d 769, 772 (1968). In Richburg , our supreme court held that the question of self-defense should be submitted to the jury when the cre......
-
State v. Thompson
...strikes. The appellant is black. Peremptory challenges may be exercised for any reason or no reason at all. State v. Richburg, 250 S.C. 451, 158 S.E.2d 769 (1968). Furthermore, in the absence of a showing of when, how often and under what circumstances the particular prosecutor had been res......
-
State v. Andrews, Appellate Case No. 2015-001679
...questions of fact must be submitted to the jury." Butler , 407 S.C. at 382, 755 S.E.2d at 460 (quoting State v. Richburg , 250 S.C. 451, 459, 158 S.E.2d 769, 772 (1968) ); see also Curry , 406 S.C. at 372, 752 S.E.2d at 267 (finding the accused's "claim of self-defense present[ed] a quintes......