State v. Robertson

• Decision Date: 16 February 1887
• Citation: 1 S.E. 443,26 S.C. 117
• Parties: STATE v. ROBERTSON.
• Court: South Carolina Supreme Court

1 S.E. 443

26 S.C. 117

STATE v. ROBERTSON.

Supreme Court of South Carolina

February 16, 1887

Appeal from circuit court, Fairfield county. Indictment for rape.

Ragsdale & Ragsdale, for appellant.

J. E McDonald, for the State.

McGOWAN J.

The defendant was tried for rape. He testified in his own behalf under the statute. The solicitor offered witnesses to impeach the veracity of the defendant in the same manner as is allowable in reference to ordinary witnesses. In rebuttal he also offered witnesses to show where the defendant was staying, or rather where he was not, at the time of the rape and, in doing so, the sheriff incidentally stated that he had made search for him under a warrant charging him with assault and battery on a woman at Rock City. To this mention of a warrant in another case the defendant's counsel objected and the objection was sustained as indirectly assailing his character; but it seems that in his argument the solicitor made some reference to his "dodging around and evading the officers of the law." The defendant was convicted with recommendation to the mercy of the court, and was sentenced to imprisonment in the penitentiary for life. He appeals to this court upon the following exceptions:

"(1) Because his honor erred in admitting testimony to impeach the character of the defendant for veracity, the defendant not having put his character in issue.

"(2) Because his honor erred in allowing the state's attorney to go beyond the testimony, and urge upon the jury that the defendant, prior to the time of the alleged rape, had committed an assault and battery on a woman, and was dodging around, evading arrest at the time of the alleged rape," etc.

It is most certainly proper, especially in criminal cases, that counsel, in addressing the jury, should keep themselves strictly within the record. This rule is essential, and must be enforced; but from the very nature of the case some latitude in argument must necessarily be allowed. It is often matter of difficulty to draw the line sharply between legitimate argument and unauthorized statement,--between what is and what is not allowable; and, as this pertains to the conduct of the cause, it must, to a large extent, be left to the wise discretion of the circuit judge. We could not affirm that the omission of the circuit judge to restrain the solicitor in his argument was such error of law upon his part as to authorize this court to set aside the verdict on that ground.

The question made by the first exception has never, so far as we are informed, been settled in this state. Down to 1866 the defendant in a criminal case was not allowed to testify in his own behalf, and therefore the question could not arise. But section 2643 of the Revised Statutes now provides that "in the trial of all criminal cases, the defendant shall be allowed to testify (if he chooses to do so, and not otherwise) as to the facts and circumstances of the case." In reference to this provision it was said by this court in the case of State v. White, 15 S.C. 390: "It is to be observed, however, that White was not an ordinary witness, but was the party accused, and, under the statute, was only permitted to testify as to the facts and circumstances; and it may admit of grave question whether his character could be impeached either in the manner suggested or in any other way; but, as this is an important question not raised in the record or argued in the case, we do not propose, upon this subject, to do more than merely suggest the question, without...