State v. Smalls

• Decision Date: 16 March 1906
• Citation: 53 S.E. 976,73 S.C. 516
• Parties: STATE v. SMALLS et al.
• Court: South Carolina Supreme Court

53 S.E. 976

73 S.C. 516

STATE v. SMALLS et al.

Supreme Court of South Carolina

March 16, 1906

Appeal from General Sessions Circuit Court of Darlington County Dantzler, Judge.

Bob Smalls and John Nall were convicted of murder, and appeal. Affirmed.

Geo. W Brown, for appellants. Solicitor Johnson, for the State.

WOODS J.

Upon their trial in the court of General Sessions for Darlington county, Bob Smalls and John Nall were convicted of the murder of Frank Scott, with a recommendation to mercy as to John Nall. The presiding judge, Hon. Chas. G. Dantzler, sentenced Bob Smalls to be executed on May 5, 1905, and John Nall to imprisonment for life.

1. The deceased was shot to death on the public highway. In their appeal the defendants first complain of the admission of evidence to the effect that while walking on the public road on their way to the place where the killing occurred, they were under the influence of liquor and shot off their guns several times; that their conduct was boisterous and threatening toward Jackson Granville, who overtook them a short time before the homicide, and that after the homicide had been committed, still carrying their guns, they went to the home of deceased. The same point was made in State v Miller, 73 S.C. 877, 53 S.E. 426, where the facts were remarkably similar. In that case the court said: "The general rule is that proof of distinct and independent offenses is not admissible on the trial of a person accused of crime, but there are exceptions to or modifications of this general rule, as where such evidence reasonably tends to show the malice, intent, or motive of the defendant with respect to the crime charged, or where the offense is so closely connected with the crime charged as to bring it within the rule of res gestae. Wharton's Crim. Evid. (8th Ed.) § § 30-47. See, also, a full and elaborate note to People v. Molineux (N. Y.) 61 N.E. 286, 62 L. R. A. 193. The testimony admitted tended to show that the defendants were, a short time before the homicide, approaching the place where it occurred armed with a deadly weapon and with a mind ready for mischief. The conduct, actions, and general behavior of the accused immediately before the killing are admissible to show that he was armed and in a vicious humor. 4 Elliott on Evid. § 3029." See, also, State v. Smith, 12 Rich. Law, 430; State v. Thrailkill, 71 S.C. 140, 50 S.E. 551.

It is next submitted the circuit judge committed the error of requiring John Nall to testify as to his shooting along the public road before the homicide and thus incriminate himself, shooting on the highway without just cause or excuse being a statutory misdemeanor. The record does not bear out this charge of error. After Nall on cross-examination had testified without objection to his shooting on the public road before reaching the place where the homicide occurred, defendant's counsel objected "to further testimony as to shooting along the road at other places than at the place of homicide." This objection was overruled, and defendant's counsel did not until then make the point that defendant had the right to refuse to answer as to shooting along the highway prior to the homicide. It is true, the point was not sustained, but no further question was asked or answered about shooting except that which was done at the time and place of the homicide.

2. It is further insisted that testimony adduced, on the cross-examination of John Nall, that Bob Smalls was in the habit of cursing, was irrelevant and prejudicial. This witness subsequently testified that Smalls cursed that day. We are unable to see how the evidence as to his being in the habit of using profane language could have affected the result of the case.

3. It is next earnestly insisted that there was such...