State v. Smith

• Decision Date: 28 May 1942
• Docket Number: 15417.
• Parties: STATE v. SMITH.
• Court: South Carolina Supreme Court

20 S.E.2d 726

200 S.C. 188

STATE v. SMITH.

No. 15417.

Supreme Court of South Carolina

May 28, 1942

[Copyrighted Material Omitted]

W B. Norton and W. B. Norton, Jr., both of Marion, and W. L Harrelson, of Mullins, for appellant.

J. Reuben Long, Sol., of Conway, and P. H. McEachin, of Florence, for respondent.

E. H. HENDERSON, Acting Associate Justice.

The defendant, Hugh G. Smith, was charged with the murder of his wife, Mary Smith, and was tried at the Fall, 1941, term of the Court of General Sessions for Marion County. He was convicted of manslaughter, and was sentenced to fifteen years imprisonment.

He lived about two miles from the Town of Marion, and in a neighboring house, about one hundred yards away, Mr and Mrs. Ashley Hinson resided.

A short time before the killing, the defendant and his wife had become estranged, and she had moved to the nearby home of a daughter. On the night of December 31, 1940, she engaged a taxicab and was driven to Mullins, about seven miles away. There she first went to the home of Mrs. Woodrow Davis, who is a sister of Mrs. Hinson. After talking with Mrs. Davis she proceeded in the taxicab to Martin's Hospital, inquired for her husband, and found that he was not there.

She then sought two policemen on the street and had a conversation with them, asking them to go with her to the Davis house. She said that her husband was there and that she wanted him. They refused to go with her on the ground that it was a family affair. Mrs. Smith stated to them that she would get her husband if she had to kill him and drag him out.

Returning to the home of Mrs. Davis, looking for Mrs. Hinson, she proceeded to make a very thorough search of the house, behind the doors and into the living room, the dining room and the bath room. Not finding anyone there, she left word with Mrs. Davis to tell Mrs. Hinson "that if she was not slick she would get her before the night was over." She then left Mullins in the taxicab, and drove the several miles to the home of Mrs. Hinson, arriving there about 8:30 o'clock.

Mrs. Smith got out of the automobile and entered the Hinson residence without knocking. The driver of the car stopped near the house and waited. In a few minutes he heard the voices of women talking loudly, then a woman screaming. He did not see any other person enter the dwelling, though he could have seen if anyone had come. When the screaming began he started his automobile, and when he had driven about sixty yards he heard three shots fired.

The Hinson house was dark when Mrs. Smith entered it. Mr. Hinson was away, at his work at the veneer mill at Marion. His six year old child had gone to a filling station to get a coca cola.

Mrs. Hinson, who was twenty-nine years old, testified that she was at her home on the night of December 31, 1940. Her husband had gone to work about five o'clock. She was sitting before the fire, which had burned down to coals or embers. There was no light burning. The shades were drawn. A car drove up in front of the house and Mrs. Smith walked in and said that her husband was there. Mrs. Hinson denied this, and invited Mrs. Smith to search the house. Mrs. Smith went into the bedroom and looked under the bed, finding no one there. She then looked in the kitchen and returned to the dining room, the witness stated, where she grabbed Mrs. Hinson and threw her across a chair, striking and kicking her. Mrs. Hinson screamed. In a minute or two, she said, someone rushed in the front door, caught her by the arm and threw her back, and then the pistol fired. She ran out of the house.

The defendant testified that he was thirty-nine years old. That on the evening of December 31, 1940, he was at a tenant house near his dwelling, and the man living there had prepared some supper for him. The defendant had been drinking for several days, though not much that afternoon, and after supper he sat in a chair and dropped off to sleep. After a time, he testified, he waked up and heard some one screaming; he went out in the yard and could tell that the sound came from the Hinson house. He went back into the tenant house to get a pistol which he had bought three days before, and walked fast over to the Hinson residence. He saw an automobile drive away just before he went into the house, he said. He opened the door, and heard scuffling in the dark room. He reached and seized a woman and pulled her to one side. He received a blow beside his head, he stated, and started to shoot.

Mrs. Smith was shot three times, two bullets striking her over the heart, and one in the left side just below the ribs.

After being arrested the defendant confessed to the sheriff and his deputy that he had shot his wife three times, and, according to the officers, said that it seemed as if she would never fall.

The defense contended that Mr. Smith was acting in defense of himself and in defense of Mrs. Hinson. The contention of the State was that Mr. Smith and Mrs. Hinson were alone together in the house, when the defendant's wife unexpectedly arrived, and that the shooting then occurred.

Before the trial began the defendant moved for a continuance of the case on account of the absence of two witnesses, policemen Byrd and Thompson, the officers with whom Mrs. Smith had talked not long before the killing. The witness Byrd later appeared at the trial, and was fully examined by defendant's counsel. The Court required the defendant to comply with Rule 27 of the Circuit Court by setting forth the facts he believed the witness Thompson would testify to, if present. The statement was prepared, and the trial Judge stated that he would grant a continuance unless the Solicitor accepted it, with certain portions deleted by the Court as being incompetent. The Solicitor made no objection to the use of the statement in evidence, and Judge Sease overruled the motion for a continuance.

The defendant did not later offer to read the statement to the jury. During the course of the trial, after the testimony of the witness Byrd was completed, the Solicitor stated that he would be very glad to have the testimony of the other officer read. Defendant's counsel then said that since they had one witness whose testimony was practically identical, they did not care to offer the Thompson statement.

A motion for a continuance on the ground of the absence of a witness is addressed to the sound discretion of the trial Judge, and this Court will not disturb the Judge's ruling unless an abuse of discretion is shown. State v. Johnson, 196 S.C. 497, 14 S.E.2d 24.

We think that the discretion of the Circuit Judge was wisely exercised in this instance.

The defendant thereupon moved that the jury panel be quashed, upon the ground that the venire had been illegally drawn, in that ten days public notice of the time and place of the drawing of the venire had not been given; that the jury box was not locked securely by three locks with three separate keys, one held by each of the jury commissioners; and that the proper jury commission did not participate in the drawing of the extra venire.

No affidavits were offered in substantiation of these claims.

After the making of the motion the following occurred:

"The Court: That is your motion?

"Mr. Norton, Jr.: Yes, sir.

"The Court: Anything else?

"Mr. Norton, Jr.: No, sir."

The Court then overruled the motion on the ground that it was not borne out by any evidence, and that the allegations had not been proven.

The grounds relating to the three locks and keys, and to the proper jury commission, were not argued by the appellant in his brief. They were apparently based, however, upon the fact that the County Superintendent of Education took part in the drawing of the jury in place of the County Auditor. This is clearly permitted by Section 622, of the Code, which provides that if any one of the regular commissioners is "unable to serve for any cause, the county superintendent of education shall act in his place and stead." There was nothing before the Court to show that the Superintendent of Education did not have the auditor's key. State v. Smith, 77 S.C. 248, 57 S.E. 868.

The real question, then, relates to the giving of the public notice ten days before the drawing of the jury.

When he passed upon the motion, the Circuit Judge was correct in refusing it. No proof whatever had been offered that the notice had not been published, although the burden of showing this was upon the defendant. State v. Toland, 36 S.C. 515, 15 S.E. 599; 35 C.J. 379.

After the trial Judge had heard the motion, after it had been stated that there was nothing else, and after the ruling of the Court had been made, the defendant's attorney said: "If your Honor pleases, the Clerk of Court is in court." To this Judge Sease responded that he had asked if there was anything else and that counsel had said "No". In the fourth exception the defendant now contends that the Court refused to permit him to swear the Clerk of Court in support of his motion.

We think that the defendant, if he desired to have the Clerk of Court testify as to a failure to publish the notice, should have offered him as a witness before Judge Sease made his ruling. It is confided largely to the presiding Judge to govern the conduct of the trial. The defendant did not formally or in so many words offer the Clerk as a witness, or ask that he be sworn, though it is true that the natural inference is that such was his desire.

Assuming, then, that the defendant should have been allowed to examine the Clerk, while it is altogether uncertain what his testimony would have been, the most he could have testified to was that the ten days public notice of the drawing of the jury had not been given. Is the failure to publish the notice...