State v. Rowell

• Decision Date: 10 December 1906
• Citation: 56 S.E. 23,75 S.C. 494
• Parties: STATE v. ROWELL.
• Court: South Carolina Supreme Court

56 S.E. 23

75 S.C. 494

STATE v. ROWELL.

Supreme Court of South Carolina

December 10, 1906

Appeal from General Sessions Circuit Court of Florence County Klugh, Judge.

William B. Rowell was convicted of murder, and appeals. Reversed.

Defendant appeals on following exceptions:

"(1) The court below erred in allowing the witness G. S O'Bryan to testify, over the objection of the defendant to the alleged condition of the defendant before the homicide, and to alleged conversations between said witness and one Speed, and an alleged conversation between said parties and the defendant, to wit: 'Q. What was his condition and what did he say? A. Mr. Speed and myself were talking-- Q. What did either one of you say in his presence? A. Speed and myself were walking by and he was leaning upon a post. Q. Who was? A. Mr. Rowell. And when we got right near to him Mr. Speed was talking, and he said: "That is a damn lie; I don't believe a word of it." Q. You and Mr. Speed were walking along talking? A. Yes, sir. Q. Mr Rowell was where? A. On the corner. Q. How was he doing? A. He was leaning up against the post there, in pretty bad shape. Q. You and Mr. Speed walking along talking? A. Yes, sir. Q. What did Mr. Rowell say? A. We were walking along talking, and when we got right near Mr. Rowell said: "It is a damn lie and I don't believe a word of it; and you are going to the blind tiger to get a drink." Speed struck a match and held it in his face, and I said: "Oh, come on. It is Mr. Rowell, and he is drinking." (a) The same was irrelevant. (b) There was no connection between the same and the homicide. (c) It was an effort by the state to show other acts of misconduct on the part of the defendant, not connected with the homicide, to attack and blacken his character, and to prejudice the defendant in the mind of the jury.

(2) The court below erred in holding as incompetent and ruling out the answer of the witness Leon D. Morris to the question: 'Do you know whether it was the custom of Mr. Blount to go armed?' (a) The testimony was admissible; and (b) relevant as tending to establish self-defense.

(3) The court below erred in allowing the solicitor to submit to the inspection of the witness John L. Rogers a paper purporting to have been signed by him, interrogating the witness as to the same and reading the same to witness and in hearing of the jury, without allowing the defendant's counsel the privilege of first inspecting the same, and in holding that the right did not exist unless the paper is offered in evidence. The court should have held that submitting the paper to the inspection of the witness and then reading the alleged contents to the witness in the hearing of the jury did not confer this right, and was tantamount to the introduction of the same in evidence.

(4) The court below erred in holding as competent, over defendant's objection, and forcing the defendant while on cross-examination to answer the following questions by the solicitor, and in holding that the same were competent because it was the cross-examination, to wit: 'Q. While you were at Mr. Rouse's store, is it not a fact, Mr. Rowell, that you were so much under the influence of whisky that your friend Mr. Rouse asked you to go home, and told you it was best for you to take a cup of coffee? Q. When Mr. Rouse advised you to do that, didn't you reply, in substance, in this way to Rouse: "You are a fool; you don't know what you are talking about. A man in my position, a constable, could kill a man and not suffer as much as you think?" Didn't you use that expression, drinking, being under the influence of whisky? Q. Very good. Did you not, on this evening of the 16th of December, the same evening as this killing at Tom William's blacksmith shop, about 6 o'clock, anyway, late that evening, about 6 o'clock, in the city of Florence, didn't you try to borrow 25 cents from Mr. Tom Williams, and didn't he refuse to lend it to you, telling you that you already had enough liquor? Q. Well, I am giving you notice we are going to contradict you. And in the same conversation, when Mr. Williams refused to let you have this money, didn't you go on and say, that you intended to kill a man at the dispensary? Q. Very good. At Pendergrass's store, did you threaten right there to kill Nat Phillips? Q. Didn't Mr. Hollis put you out of the store? And didn't you come back in, saying, "God damn him! I'll kill him!" alluding to Nat Phillips? Q. When Mr. Hollis put you out of the store, didn't you go out on the street and say: "I will stand here and get him," or words to that effect? Q. Mr. Rowell, isn't it a fact--I will ask you again--that when you went in Pendergrass's store you were so much under the influence of whisky, in addition to doing what I have already asked you about, that you spoke about being on the constabulary force and you had been discharged, and cursing around generally? Q. Hadn't you been discharged once or twice? A. Only once. Q. How long before that? A. It was during Governor McSweeney's administration. Q. Wasn't it for drunkenness? A. Yes, sir; it was.' (a) The same were irrelevant. (b) There was no connection between the same and the homicide. (c) They were efforts by the state to show other acts of misconduct on the part of the defendant, not connected with the homicide, to attack and blacken his character, and to prejudice the defendant in the mind of the jury. (d) The court should have held that the privilege and license of cross-examination never permits the introduction of testimony otherwise positively incompetent and improper.

(5) The jury having returned to the courtroom twice and announced that they could not agree, the court below erred in sending them back a third time and giving them the following charge: 'The Court: Mr. Foreman, is there any further matter in which the court can give you assistance to enable you to arrive at a verdict? The Foreman: No, sir. The Court: You don't desire any further insrtuction upon law? The Foreman: No, sir. The Court: Nor any portions of the testimony read? The Foreman: No, sir. The Court: It is simply a matter of inability of the jury to agree? The Foreman: Yes, sir. The Court: Well, that, to say the least of it, is a very unsatisfactory condition of things. It cannot satisfy the defendant or the state. I doubt very much whether it satisfies the jury. It certainly does not satisfy the court. You are sworn to arrive at a verdict, and to render a true verdict according to the evidence. It sometimes happens that the jury is not able to do that, merely because there are 12 intelligent minds who have to deal with the facts of the case, and those 12 intelligent minds see the facts from different standpoints and arrive at different conclusions as to what are the facts of the case. After a jury, or anybody else, gets at the facts of a case it is a very simple matter to apply the facts to the law--for the law is fixed. It is not a question of what is the law, or whether you agree about the law, for there is no possibility of a disagreement about the law. So that it is a simple matter, if the facts of a case are ascertained, to apply those facts to the law, and render a conclusion; that is, in this instance, a verdict. But sometimes that turns out to be practically impossible. Because men have their views, they have their consciences, and men who are sworn on their solemn oaths to render a verdict according to the facts may not be able, upon their good consciences, to reconcile differences that arise amongst you and come to a common agreement or conclusion as to the facts of the case. I take it that that is apparently what the trouble is now; that you have not been able to agree amongst yourselves as to what are the facts of the case; and therefore you are unable so far to render a verdict in the case. Now, as I have said, you being intelligent men, good and lawful citizens, true men, no doubt you are impressed with the unsatisfactory condition of things that that presents. If you do not agree, it means that this whole matter will have to be gone over again by some other jury, who will be expected to agree, and there is no human probability that that jury will be in any better position to agree than you are. So it follows, then, necessarily, that if it can be that this jury can come together and agree on a verdict, you ought to do it. As I have said already, a mistrial must be unsatisfactory to everybody. It satisfies nobody. The state is at the expense of carrying on this prosecution. That is the smallest matter of consideration in the whole transaction--is the expense and trouble or inconvenience that the state may be put to, because the state is able to stand it; more able to stand it than anybody else connected with it. But it is not a trifling consideration, because the state represents all the people, and their rights, after all, are supreme. And yet, in a case like this, they are no higher than the rights of the defendant; they are just exactly on a level with his rights. Still, a mistrial could not satisfy the demands of the state. The state, first of all, wants an end of this litigation, and, if it be just that the state should have a verdict against the defendant, then the state wants that; if it be not just, the state does not want that. On the other hand, turn to the position of the defendant. He is put to the anxiety, the annoyance, the inconvenience, the interference with his affairs, as well as the expense of having to go over this case, and of having had to go over it already, and, if you fail to agree, then of having to go over it again before another jury who, as I have said, will be in no better position, if indeed, as good a position, to decide the case as you are. Now, those are very high considerations, both on behalf

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