State v. Smith

Citation19 S.E.2d 224,199 S.C. 279
Decision Date03 March 1942
Docket Number15384.
PartiesSTATE v. SMITH et al.
CourtSouth Carolina Supreme Court

Sam N. Burrs and C. Yates Brown, both of Spartanburg, for appellants.

Samuel R. Watt, Sol., of Spartanburg, for respondent.

Wm. H GRIMBALL, Acting Associate Justice.

Appellants above named were tried before Judge Thomas S. Sease and a jury and were convicted of assault and battery with intent to kill. Each was sentenced to confinement at hard labor for a term of four years.

The record discloses that on March 13, 1941, there was a very bitter altercation between the appellants, who are related closely to one another, and one Joe Leonard, the prosecuting witness. In the course of this difficulty Leonard was seriously wounded by shots from a shotgun in the hands of appellant Nick Smith. Appellants insisted that Leonard at the time was trying to kill them with his pistol, and that Nick Smith used the shotgun in defense of himself and of his relatives.

Nick Smith testified that he shot his gun four times: "I shot him twice when he was facing me *** and the last shot went in his back."

Judge Sease, in his customary able charge, left to the jury the issues of assault and battery with intent to kill, aggravated assault and battery, simple assault and battery, self-defense and defense of others in peril. And the jury convicted appellants of assault and battery with intent to kill.

In the course of the trial, Leonard testified that his eye had been shot out, and that he was shot in the lungs, in his arm in his head, and all over his back. His body was shown to the jury.

The record shows that in 1937, some four years previous to the instant difficulty, Leonard had been shot with a shotgun by a man named Sexton; the shot entering his back and the back of his head. Upon the trial of the instant case, appellants' counsel undertook, on cross-examination, to elicit from Leonard the fact that he had been previously shot in this manner by Sexton. Cross-examination as to whether he had been previously shot was objected to by Solicitor Samuel R. Watt and his objection was sustained by the trial Judge.

Appellants' counsel insist that in this denial of their right of cross-examination on this point there is reversible error.

While this Court has many times held that matters of cross-examination are very much within the discretion of the trial Judge, it is nevertheless the established practice to allow a rather full and thorough cross-examination of the witnesses for both the State and the defendant in the criminal Courts by way of questions tending to test memory veracity or credibility.

We are of the opinion that counsel for appellants should have been allowed to elicit from Leonard the fact that he had been previously shot in the back as set forth above.

Was the error prejudicial? Was it material to appellants' cause? Does it warrant a reversal? We are of the opinion that these questions must be answered in the negative.

Whether or not the jury had been informed of the previous shooting of Leonard the record...

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