State v. Rouse

• Citation: 135 S.E. 641,138 S.C. 98
• Decision Date: 24 November 1926
• Docket Number: 12108.
• Parties: STATE v. ROUSE.
• Court: United States State Supreme Court of South Carolina

135 S.E. 641

138 S.C. 98

STATE v. ROUSE.

No. 12108.

Supreme Court of South Carolina

November 24, 1926

Appeal from General, Sessions Circuit Court of Aiken County; E. C Dennis, Judge.

Joe Rouse was convicted of manslaughter and he appeals. Affirmed.

The following is the portion of the court's charge relating to defendant's right to act on appearances:

A man is not required to do more than act on appearances. If a person is attacked by another with a pistol that is unloaded he can act on appearances and defend himself. For instance, a man attacks another with a pistol that is unloaded, and it is pointed at him in a threatening manner, he has a right to act on appearances. He has not got to take the chance to find out if it is loaded or not, but he acts on appearances, and if those appearances are such that would lead him to believe that his life was in danger, and if the circumstances are such as would make or cause a man of reasonable prudence and judgment to think the same thing, then he would be justified in acting on those appearances. We have in our courts a guide. We do not take a very nervous person that would shoot or strike too quick as an example. Neither do we take a man who is calm and cool, and who will stand by and wait too long, but we take the ordinary man, and we judge the conduct of a defendant by that reasonable standard.

As a matter of fact, where a man is on the public highway, he has a right to be there, and what I have said to you about retreating or avoiding by escaping the necessity to kill-he has not got to increase his danger-therefore, in the public highway he has not got to retreat, if the appearances are such that to do so would increase his danger .

R. L Gunter, of Aiken, for appellant.

B. D Carter, Sol., of Bamberg, and Hendersons & Salley, of Aiken for the State.

BLEASE J.

The appellant, Joe Rouse, indicted for the murder of John Hankinson, was tried in the court of general sessions for Aiken county by his honor, Circuit Judge E. C. Dennis, and a jury, and was convicted of manslaughter.

The appellant asks that the judgment and sentence below be reversed, and to that end he has two exceptions.

One of the witnesses called to testify on the part of the state, in developing its case in chief, was James Blackman. It appears that the testimony of the witness was not as the prosecuting attorneys expected it to be. Either the witness knew little, or was inclined to make statements favorable to the defendant. It developed that he had formerly made an affidavit before W. M. Smoak, Esq., an attorney and notary public, and that the contents of this affidavit did not agree with his testimony on the witness stand. On the ground that the witness might be hostile or an unwilling witness, the presiding judge indicated that he would permit the state to cross-examine the witness. It was discovered that the affidavit was not in the courtroom and was probably in Mr. Smoak's office, and Mr. Smoak was requested to go for it. The assistant counsel for the state thereupon made this statement to the court:

"While Mr. Smoak has gone for the affidavit I will take him (the witness) down off the stand, and put up another witness, and then they can cross-examine him later on."

In reply to that announcement, James F. Byrnes, Esq., one of the attorneys for the defendant, said: "I have no objection to that." Thereupon the court ordered the witness to leave the stand. Following this incident, 10 witnesses were examined by the state, then several witnesses testified for the defendant, and the state put up several witnesses in reply. The witness Blackman was not recalled to the witness stand. No request that he be put back for further examination was made by the prosecution or the defendant, and the court's attention was not called to the failure to have the witness recalled for examination.

The incident related is made the basis of the defendant's first exception. It is urged that the defendant had the constitutional right to cross-examine the witness, and that he was prejudiced by not being allowed that privilege. Counsel for the appellant, in support of this contention, refers us to the cases of State v. McNinch, 12 S.C. 89; State v. Howard, 35 S.C. 197, 14 S.E. 481; State v. Bigham, 133 S.C. 491, 131 S.E. 603; and the very recent case of State v. Hester, 134 S.E. 885.

The declarations made in the McNinch Case by Mr. Associate Justice Haskell, which were concurred in by Chief Justice Willard and Associate Justice McIver, were, indeed, strong as to the right of cross-examination by a defendant in a criminal case. A close reading of the opinion, however, will show that, in the trial of the case, the witness, one Grimes, was allowed to be withdrawn at the instance of counsel for the prosecution, although the defendant insisted on his right to cross-examine, which was not allowed.

In the Howard Case, where the defendants were charged with the killing of one Ross, when a witness for the state, Rochester by name, was being cross-examined by counsel for the defendants, he was asked if he had not stated to Anderson and Abe Pittman, at a time and place mentioned, that he had sworn lies for Bill Moon and Bill Howard about the killing of Ross; and the witness said he had not. Afterward, when Abe Pittman was on the stand as a witness for the state, on his cross-examination by the defendants, it was sought to contradict by him the witness Rochester. The trial judge held that the proper time to do this was when the defendants called their witnesses. It is indicated that the same thing occurred when Anderson Pittman was on the stand for the state. Later Anderson Pittman and Abe Pittman were offered as witnesses for the defendants, and they testified that the statements denied by Rochester had been made by him. Citing the McNinch Case as authority that the defendant, who was convicted, had been prejudiced, and that this prejudice had not been cured by the fact that the two witnesses in question had been later examined by the defendants, this court held:

"So that when the circuit judge denied the defendant the right to cross-examine the state's witnesses fully and freely, and especially on the matter embraced in the exception, he was in error."

In the Bigham Case, George Steele, witness for the state, died after giving his evidence in chief. This court held that the defendant had not waived his right to cross-examine the witness, and that such right had been denied by an act of God, and held that under the circumstances a mistrial of the cause should have been ordered.

In the Hester case, the State, through witnesses presented by it, offered and read to the jury an affidavit of an alleged accomplice in the crime, charged against the defendants on trial, in the face of protest made by the defendants. This court held there was error, and one of the reasons for so holding was that the defendants had not been permitted the opportunity to cross-examine the maker of the affidavit.

It will be observed that in the four cases to which we have referred upon which the appellant depends, there was...