State v. Shoe
| Decision Date | 27 October 1941 |
| Docket Number | No. 15314.,15314. |
| Citation | 17 S.E.2d 142,108 S.C. 215 |
| Parties | STATE. v. Ml SHOE et al. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Horry County; J. Strom Thurmond, Judge.
Mack Mishoe and others were convicted of murder, and they appeal.
Affirmed.
E. S. C. Baker, of Conway, for appellants.
Jeff D. Griffith, Sol., of Saluda, and F. A. Thompson, of Conway, for respondent.
The appellants above named, to wit, Mack Mishoe, and two of his sons, Elton Mishoe and Oston Mishoe, were charged with the murder of one Sims Todd on the night of July 16, 1938. All of the alleged actors in the tragedy and many of the witnesses were near neighbors and members of reputable white families living in one of the excellent farming sections of Horry County. The theory of the State, which finds quite definite support in the evidence, was that Elton Mishoe fired the fatal pistol shot which resulted in the death of Sims Todd, who was at the time fleeing from his adversaries; and that the defendants Mack Mishoe and Oston Mishoe (frequently referred to in the record as Austin Mishoe) were present and actively participated; that all of the defendants acted in concert and with preconceived plans. On the other hand, there was testimony by the defendants and in their behalf that Oston Mishoe was attacked by one Clip Todd, a brother of the deceased, and that in response to the cries of his son Oston for help Mack Mishoe appeared on the scene, when he was attacked by Sims Todd who knocked him down, whereupon Mack Mishoe shot him in self-defense; and that Elton Mishoe was not even present.
The case came on for trial at the September, 1939, term of the Court of General Sessions for Horry County, before Hon. J. Strom Thurmond, presiding judge, and a jury; and the trial, which lasted more than a week, resulted in a verdict of guilty of murder with recommendation to mercy as to all three defendants. Their motion for a new trial was overruled and the life sentence duly imposed. Thereupon this appeal was taken upon numerous exceptions. These exceptions, however, are reduced to seven points in the argument of counsel for appellants, and each of these points will be discussed by us, but in a somewhat different order.
The errors charged may be briefly stated as being: In refusing a continuance; in refusing a mistrial (and incidental thereto, in the amendment of the transcript of record); in respect to a certain portion of the argument of counsel for the State in rulings on testimony; in the charge to the jury; and in refusing a new trial.
When the case was called for trial the defendants by their counsel moved for a continuance because of the absence of two witnesses who were alleged to be ill; but the presiding judge refused to continue the case beyond the term or to postpone it to a later date in the term. An affidavit as to the testimony of one of these witnesses was admitted in evidence, and as stated by counsel for the appellants in his argument any question as to this witness is eliminated, but it is earnestly argued that the Court erred in this connection with reference to the witness Mrs. Bell Mishoe, wife of the defendant Mack Mishoe, and mother of the defendants Elton Mishoe and Oston Mishoe, and a very material witness for the defendants.
A physician's certificate as to the illness of Mrs. Bell Mishoe was presented to the Court, but the presiding judge did not regard the certificate as satisfactory because it did not state whether or not the witness was able to come to Court, but only that her physical condition would be aggravated by her attendance. After some discussion of the matter between the Court and counsel the trial judge instructed two reputable physicians, one of whom had previously treated Mrs. Mishoe, to examine her and report to the Court as to whether she would be able to attend the trial. They appear to have made a thorough examination of Mrs. Mishoe, and upon their appearance in Court were fully questioned by the presiding Judge and counsel. Their report was to the effect that in their opinion it would not hurt Mrs. Mishoe to come to Court and testify, and further that she was in as good condition and as well able to testify as she would ever be, her condition evidently being, in their judgment, a chronic one. The judge thereupon ordered the case to trial, and Mrs. Mishoe was brought into Court lying on a cot, and was in attendance throughout the trial, testifying while still on the cot.
It is strongly contended by counsel for appellants that Mrs. Mishoe was in such a weakened condition that she was unable to assist her husband and sons in their defense, and that her testimony was given with much difficulty and was so weak and inaudible that it was impossible for the jury to get the full benefit thereof. However, we have read her extended testimonywith due care, and it seems to us to be quite intelligible, and was doubtless very helpful to the defendants. The Court stenographer evidently found no serious difficulty in hearing the witness, and the record shows no complaint by any member of the jury that her testimony was inaudible. And the fact that she was lying on a cot while in attendance upon the trial and when giving her testimony was in our judgment in no wise prejudicial to the defendants but is more likely to have been favorable to them.
We are in full accord with the law as declared by this Court in the case of State v. Williamson, 115 S.C. 315, 105 S.E. 697, in which the opinion was delivered by Mr. Justice Watts (who was ever zealous to protect the rights of defendants), to the effect that ordinarily a defendant being tried for a capital felony has the right to have his wife present at the trial and the wife has the right to be present. But in the case at bar the wife was present and testified in detail in behalf of defendants.
A matter of this kind has been repeatedly held as depending upon the wise discretion of the trial judge, whose rulings will not be reversed unless the record shows legal abuse of such discretion; and it seems to us that Judge Thurmond properly exercised his discretion under the circumstances in ordering the case to trial.
We think the following quotation from the opinion in the case of State v. McDonald, 184 S.C. 290, 192 S.E. 365, 368, is quite applicable to the case at bar:
But perhaps the point most strenuously urged by counsel for the appellants, at least upon the oral argument, is that the trial judge committed prejudicial error in a statement made by him in ruling upon the admissibility of testimony, in that the same was equivalent to a charge on the facts because it indicated that the judge regarded the testimony of the witness as being true.
The statement complained of was made in response to an objection to the admissibility of certain of the testimony during the examination of Mrs. Bay Todd, wife of the deceased Sims Todd, and we quote the following from the transcript of this part of the record as originally prepared by the Court stenographer, underscoring the particular sentence in question:
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