State v. Smith, No. 17210

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS; General Sessions Court of Charleston County. The Honorable E. H. Henderson; STUKES
• Citation: 94 S.E.2d 886,230 S.C. 164
• Docket Number: No. 17210
• Decision Date: 26 October 1956
• Parties: The STATE, Respondent, v. DeWitt T. SMITH, Appellant.

Page 886

94 S.E.2d 886 230 S.C. 164 The STATE, Respondent,
v.
DeWitt T. SMITH, Appellant. No. 17210. Supreme Court of South Carolina. Oct. 26, 1956.

[230 S.C. 165] Edward D. Buckley, Charleston, for appellant.

J. C. Hare, Solicitor, [230 S.C. 166] Charles J. Baker, Jr., Charleston, for respondent.

MOSS, Justice.

The appellant, DeWitt T. Smith, was arrested and charged in the Recorder's Court of the City of Charleston with operating a motor vehicle while under the influence of intoxicating liquors, in violation of City Ordinance No. 46-58. On trial before the Recorder, with a jury, the appellant was convicted and sentenced. He appealed from such conviction and sentence to the

Page 887

General Sessions Court of Charleston County. The Honorable E. H. Henderson, Presiding Judge of the Ninth Judicial Circuit, dismissed the appeal from such court and affirmed the conviction of the appellant.

It appears at the trial that the City of Charleston 'offered in evidence certain hearsay statements of the proprietors of the Tic-Toc Lounge and the Up-Town Restaurants, establishments[230 S.C. 167] located in the City of Charleston. Appellant's counsel objected specifying as a ground that under the Constitution of the State of South Carolina and of the United States the accused was entitled to be confronted by witnesses against him and he had the right to cross examine these witnesses. The Recorder admitted this evidence over the objection of Counsel.' It also appears that immediately following the arrest of the appellant that he was taken to the police station where he was asked to submit to a chemical test designed to measure the alcoholic content of his blood. He refused to submit to such test. Upon trial, evidence of the fact that the appellant had refused to submit to the chemical test, for the purpose of determining the amount of alcohol in his blood at the time of the alleged violation, was offered in evidence. The Recorder permitted this testimony to be received in evidence. The appellant objected to the evidence on the ground that he could not be compelled in any criminal case to be a witness against himself and that the testimony so received violated the rights guaranteed to the appellant by Article I, Section 17 of the 1895 Constitution of South Carolina, and Amendments V and XIV of the Constitution of the United States.

The appellant also complains that it was error for the attorney for the respondent to comment to the jury upon his refusal to submit to the chemical test of his blood. The exceptions of the appellant pose the questions hereinbefore stated.

There can be no doubt that a defendant has a constitutional right to be confronted by the witnesses against him. Art. I, Section 18, of the 1895 Constitution of South Carolina provides:

'In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *.'

This constitutional right is restated in Section 17-506 of the 1952 Code of Laws of South Carolina, which provides:

[230 S.C. 168] 'Every person accused shall, at his trial, * * * have a right * * * to meet the witnesses produced against him face to face.'

The defendant cannot be denied the right to cross-examine the witnesses against him. State v. McNinch, 12 S.C. 89. The personal presence of a witness is required so that the accused may cross-examine him. State v. Bigham, 133 S.C. 491, 131 S.E. 603. Affidavits and depositions are inadmissible in evidence in a criminal case. State v. Hester, 137 S.C. 145, 134 S.E. 885; State v. Murphy, 48 S.Ct. 1, 25 S.E. 43.

We adhere to the announcements made in the foregoing cases.

However, the transcript of record in this case does not show what evidence was offered by the hearsay statements of the proprietors of the restaurants referred to in such statements. An accused must be prejudiced by the admission of hearsay testimony in order to be entitled to a reversal on the ground of its admission. The record in this case does not show what the testimony was nor can we determine from the record whether it was prejudicial to the appellant or not. The burden is upon the appellant to satisfy this court that there has been prejudicial error. State v. McPhail, 115 S.C. 333, 105 S.E. 638; State v. Glover, 91 S.C. 562, 75 S.E. 218; State v. Bethune, 88 S.C. 401, 71 S.E. 29.

In the case of State v. Deas, 202 S.C. 9, 23 S.E.2d 820, 821, this court said:

'As has been many times said, the admission of evidence is largely within

Page 888

the discretion of the trial judge and erroneous exercise of it must be accompanied by probable prejudice to a party in order to entitle him to a new trial for admission or rejection of questioned evidence. State v. Gregory, 198 S.C. 98, 16 S.E.2d 532.'

In the case of State v. Murphy, 214 S.C. 517, 53 S.E.2d 402, 405, this court said:

[230 S.C. 169] 'In order to constitute reversible error, the reviewing court must be satisfied that there are reasonable grounds for supposing that the jury might have been misled to the prejudice of the appellant. State v. Washington, 80 S.C. 376, 61 S.E. 896; Boggero v. Southern Ry. Co., 64 S.C. 104, 41 S.E. 819; Sharpton v. Augusta & Aiken Ry., 72 S.C. 162, 51 S.E. 553. In this case no prejudice has been demonstrated.'

We cannot from the record determine whether or not hearsay testimony admitted in the trial of this case was prejudicial to the appellant. Since the burden was upon the appellant to show that such was prejudicial, and he having not done so, this court cannot be speculation or guess reach the conclusion that such testimony was prejudicial.

We now consider the question of whether error was committed in permitting testimony of the appellant's refusal to submit to a chemical test for the purpose of determining the amount of alcohol in his blood. We also consider the question whether it was error for counsel for the respondent to comment to the jury upon the appellant's refusal to submit to the chemical test of his blood. The appellant asserts that to...