State v. Rogers

• Decision Date: 08 June 1915
• Docket Number: 9117.
• Citation: State v. Rogers, 101 S.C. 280, 85 S.E. 636 (S.C. 1915)
• Parties: STATE v. ROGERS.
• Court: South Carolina Supreme Court

85 S.E. 636

101 S.C. 280

STATE v. ROGERS.

No. 9117.

Supreme Court of South Carolina

June 8, 1915

Appeal from General Sessions Circuit Court of Marlboro County; John S. Wilson, Judge.

Walter Rogers was convicted of malicious injury, and he appeals. New trial.

The assignments of error were as follows:

"First. Because his honor erred in allowing a copy of a transcript of the testimony of a witness, John Johnson, taken at a former trial, to be put in evidence upon the the trial of the defendant; it being respectfully submitted that it was error on the part of the trial judge to admit this testimony for the following reasons: (1) The testimony of a witness at a former trial is inadmissible in a subsequent trial in this state. (2) The proper foundation was not laid under the law in those states where such testimony is permitted. (3) A copy of a transcript of the testimony is inadmissible unless it should be shown that the original transcript has been lost, or is beyond the reach of the court.

Second. (1) Because his honor, the presiding judge, committed error in allowing the attorney for the state on a cross-examination to read from the transcript of the testimony of Ike Dudley, a witness at the former trial, who was present at court, but who was incompetent as a witness by reason of the fact that he was disqualified; it being respectfully submitted that it was error to permit the attorney for the state to bring before the jury testimony which was inadmissible and incompetent and to allow the state in this indirect way to get incompetent testimony before the court. (2) Because his honor committed error in allowing the attorney for the state to read from the transcript of the testimony of Hattie Rogers, a witness who testified at the former trial, and who was present in court, and whose testimony could have been obtained by the state; it being respectfully submitted that the reasons assigned for not placing this witness upon the stand were invalid and that the state could not in this way impeach the testimony of their own witness at a former trial by creating the impression that if this witness would go upon the stand she would swear falsely, because of the facts stated by attorney for the state; it being the presumption of law that a witness will testify to the truth, and it being further submitted that the state could not in this indirect way secure the testimony of this witness, Hattie Rogers, and thus deny the defendant the right of the full and complete cross-examination.

Third. Because the testimony of John Johnson, Ike Dudley, and Hattie Rogers were improperly admitted in evidence."

J. K Owens, of Bennettsville, for appellant.

J Monroe Spears, Sol., of Darlington, and D. D. McColl, Jr., of Bennettsville, for the State.

GARY C.J.

The defendant was convicted under an indictment charging him with malicious injury, and appealed to the Supreme Court, which reversed the judgment of the...