State v. Senn

• Citation: 32 S.C. 392,11 S.E. 292
• Parties: State. v. Senn et al.
• Decision Date: 29 March 1890
• Court: United States State Supreme Court of South Carolina

11 S.E. 292

32 S.C. 392

State.

v.Senn et al.

Supreme Court of South Carolina.

March 29, 1890.

Murder—Reasonable Doubt—Witness—Evidence—Variance—Trial.

1. In a murder case, an instruction that "a reasonable doubt is a strong, substantial, well-founded doubt, founded in the evidence, " is not error.

2. The ruling of the court in permitting a witness to be recalled to supplement his testimony as to a conversation with defendant, the husband of deceased, relative to the cause of her death, by adding that he thought defendant said he had given her laudanum, does not show an abuse of judicial discretion, though it was not in reply to any of the husband's testimony.

8. The testimony of a trial justice, that he had issued a peace warrant against defendant at the instance of deceased, his wife, is admissible as tending to show the relation which existed between him and deceased.

4. On a trial for wife murder, a justice of the peace, before whom the deceased had instituted a prosecution for assault against defendant's mother, was permitted to testify that deceased, while a witness in said case, had stated in defendant's presence that he had made murderous threats against deceased. Held, that the admission of the evidence was error, as defendant's presence and refusal to testify in such case did not amount to a confession of the truth of the testimony of deceased.

5. It is incompetent for a physician to testify that the bruises on decedent's body were caused by some external force, and, in his opinion, by a hand. McGowan, J., dissenting.

6. The testimony of the defendant at the coroner's inquest, given at a time when he was not charged with the crime disclosed by the inquest, is admissible against him on his subsequent prosecution therefor. McIveh, J., dissenting.

7. It is too late after verdict to object to a variance between the indictment, which alleges the name of the deceased to have been "M. Ozella Senn, " and the proof, which shows it to have been "Melissa Ozella Senn."

8. The presence of two constables during the deliberations of the jury is not ground for new trial, where there is no allegation that they attempted to influence the jurors, and it appears that their presence was casual, and resulted from the action of the jurors in coming out of their own room into the court-room, where the constables were on duty, to get warm. McIver, J., dissenting.

9. Jurors will not be permitted to impeach their verdict as rendered in open court, by affidavits showing an intent different from that act ually expressed in the verdict.

Appeal from general sessions circuit court of Spartanburg county; Kershaw, Judge.

Johnstone & Cromer and O. L. Schumpert, for appellants.

McGowan, J. At the October term of the court, 1S87, for Spartanburg county, the defendants, David N. Senn and Helena Boland, were tried and convicted for the murder of M. Ozclla Senn, wife of the said David N. There is no copy of the indictment in the brief, nor case stated, —only portions of the evidence being printed; and therefore it is necessary to give a short outline of the facts, in order to make intelligible the several points raised on the appeal.

David N. Senn and wife lived in the county of Newberry; and near by, almost as members of his family, (within the circle of 100 yards,) lived his mother and her sister, Mrs. Lucy Lake, an invalid lady, and also his brother-in-law, P. B. Boland, who had a sister, Helena Boland. With a view, as stated, to show a motive for the killing, the state introduced testimony to the effect that a criminal intimacy existed between the defendants, David N. Senn and Helena Boland, prior to the death of Senn's wife. There was evidence tending to show that Senn and his wife did not live together happily and, at times were separated; that on one occasion—precise time not stated—Senn's wife, Ozclla, prosecuted his mother for an alleged assault upon her (Ozella) for something she had said about an attempt to poison her. Senn, her husband, was not in the case, —refused even to testify as a witness; but, being present, his wife charged him with having said to her "that if he heard anymore about that poison, or something of the kind, that he would burst—— out of her with an axe; that he could see her dead and in—, and he could rake the coals of fire over her;" and to this Senn said nothing. To this testimony the defendants objected; but the judge ruled that "any statements this lady made in the presence of Senn, and also in the presence of this witness, this witness can testify to." On August 9, 18S0, W. G. Peterson, a trial justice of the county of Newberry, at the instance of Mrs. Ozella Senn, issued a peace warrant against her husband, Senn, who entered into a recognizance to keep the peace, without any investigation. To a suggestion that it might be better for the parties to separate, David N. Senn objected, saying he had done nothing to go to jail for, and he would not run away. His wife consented to go home with him, and seems to have done so.

On Monday morning, August 23d, Dr. J. P. Pool, of Spartanburg county, was summoned to go to the house of his neighbor, John T. Senn; and, upon arriving there, John T. introduced him to his brother, David N. Senn, who had just arrived, who wanted a certificate from him of the cause of his wife's death; that he did not think that his family or friends, or her friends down in Newberry, would be satisfied unless there was some statement of the cause of her death. The doctor asked him in reference to the previous health of his wife, and he gave him to understand that it had been delicate; that, as well as remembered, she had had chronic chills. He stated that she "had eaten a peck of green peaches" in traveling on Sunday; that he lived in Newberry county, about 35 miles. He was coming up the country to rent land. He thought it would improve his wife's health. When asked why he had been so long on the road, and "camped" within a mile and a half of his destination, he said his team was weak, and he had been misdirected. The doctor continued: "I then went to see the body. It was dressed, and I did not examine any part except the head and the neck. When the face was uncovered, I found it was congested; that every capillary was distended to its utmost capacity. I found a bruise over the left eye, a little below the edge of the hair. It was between three-quarters and an inch long. The outer skin was abraded. It was broken for a little over a quarter of an inch, and the blueness was between three-quarters and an inch long. There was also a bruise across the nose, between a quarter and a half inch wide, extending entirely across the nose, and down on either side of the nose. Then I examined the neck. I found the neck, on either side, from a little above the collar-bone to the lower part of the ears, was a blue streak extending near to the collar-bone; but it did not go down to the collar-bone, but it extended from an inch above the collar-bone backwards to the ear. On the left side it seemed deeper then on the right. The 'echymosis, ' as we call it, or effusion of blood, was greater on the left side than on the right, but it was dark on both sides." When asked what, in his judgment, produced these streaks and bruises on the neck, objection was made to the question; but the judge ruled, being a physician, "if he had an opinion, the witness could express it, "and the witness answered: "My opinion was that they were made by some external force; but what that was, —whether it was a rope or a hand, —I could not say, but was inclined to think it was a hand." The wagon party, with the dead body of Mrs. Senn, seemed to return at once to Newberry; for on Wednesday, August 25th, J. N. Bass, the coroner of Newberry county, with W. G. Peterson, Esq., as his clerk, held an inquest over the body of Mrs. Senn,, which was then buried. The coroner, Bass, and his clerk, Peterson, both testified that at the inquest David N. Senn and Helena Boland were examined, as witnesses, as to the circumstances under which Mrs. Ozella Senn came to her death; that their statements were taken down in writing (which, as it incidentally appeared, were in court, but not called for.) Each of the witnesses was proceeding to state the accounts which Senn and Helena Boland had given at the inquest as to the circumstances attending the death of their fellow-trsveler. The defendant interposed an objection to the testimony, but the judge ruled "that he knew of no principle of law upon which he could exclude the declarations made by the parties before the coroner. There was no case then made at all. The parties were said to have been in company with the deceased, and it was entirely proper that they should bethere, "—at the inquest. The statements were then put in evidence.

There is some reference in the brief to a second inquest; and a week after, on Sep-tember 3d, the defendants, David N. Senn and Helena Boland, were arrested for the murder. There were no requests to charge. After deliberating all night, the jury found the following verdict: "Guilty, but strongly recommended to the mercy of the court." A motion was made for a new trial on the following grounds: "(a) That persons other than the jury were present with the jury during the time that the case was under advisement, said persons being inside the jury-room, where the jury were confined, and sitting and being in the midst of them at different times and for various lengths of time, and, in the case of one of the said persons, being present during almost the entire night or time of their deliberation, —this without the presence of the presiding judge, and the defendants or their counsel; (b) because the verdict does not indicate to the court which of the defendants is guilty, and does not cover both the defendants; (c) abandoned; (d) because there is a variance between the allegation of the indictment and the evidence in the case as to the person or name of the person with whose death ...