State v. Talbert

• Court: United States State Supreme Court of South Carolina
• Citation: 19 S.E. 852,41 S.C. 526
• Parties: STATE v. TALBERT.
• Decision Date: 25 June 1894

19 S.E. 852
41 S.C. 526

STATE
v.
TALBERT.

Supreme Court of South Carolina.

June 25, 1894.

Criminal Law—Dying Declarations—Res Gestae—Statements by' Accused.

1. A dying declaration is not inadmissible because made under oath.

2. The admission of a dying declaration which contained statements not relating to the immediate circumstances attending the death of declarant, is not cause for reversal unless it was objected to on that ground.

3. Testimony of a trial justice as to what offense was charged in a certain warrant was inadmissible, as the warrant was the best evidence.

4. Statements made by the accused to third persons, after the homicide had been committed are not admissible in evidence on his own behalf.

5. Declarations made by deceased immediately after he was shot, in the absence of defendant, are admissible as part of the res gestae.

Appeal from general sessions circuit court of Berkeley county; D. A. Townsend, Judge.

Henry Talbert was convicted of murder, and appeals. Affirmed.

S. J. Lee, for appeflant

W. St Julien Jer-vey, for the State.

McIVER, C. J. The appellant was indicted for and convicted of the murder of one Harry Wilson, and from the judgment rendered has taken this appeal upon the several grounds hereinafter stated. The circumstances attending this homicide may be briefly stated as follows: On the evening of the 2Sth of November, 1893, the deceased left the store of one Green, about 7 o'clock, and upon reaching the fence in front of the store, distant therefrom but a few feet, was shot. He immediately returned to the store, saying that Talbert had shot him. Very soon after the shooting, Richardson, one of the witnesses, went to the house of the defendant some 100 yards distant from Green's store, and found Talbert in bed, and, after saying something to him, he got up and dressed, and, taking his gun with him, went first to the store of one Lee, who examined Talbert's gun, and expressed the opinion that the gun had not been recently fired. He then went to Green's store, and asked the section master to examine his gun. When Trial Justice Sweeney was upon the stand as a witness, he was asked by defendant's counsel whether he had issued a warrant against one Oliver, and, upon his replying in the affirmative, he was asked what was the offense charged in that warrant to which the solicitor objected, upon the ground that the warrant itself was the best evidence of what was the charge contained therein, and the objection was sustained. This witness was subsequently asked, "Upon whose information was that warrant issued?" which seems to have been objected to upon a similar ground, and the objection was sustained. The solicitor offered in evidence, as the dying declaration of deceased, a deposition of the deceased, of which the following is a copy: "Personally appeared before me Harry Wilson, who being made acquainted with his condition, and realizing that he is in a dying condition, makes the following statement: My name is Harry Wilson. I am a constable for Mr. Sweeney, who is a trial justice at Summerville. I live at the Ten-Mile hill. I left home about half-past four o'clock this afternoon to meet Judge Sweeney. I met him at the depot. After talking with him a few minutes, I loft to go home. On my way I stopped at Mr. Green's store. As I left Mr. Green's, and got as far as his fence, I was fired at by some one who was opposite me, behind some pine trees. As I was shot I fell on my knees. The person who shot me ran out I recognized him as Talbert. I don't know his other name. He works on the railroad near the Ten-Mile hill. Talbert tried to shoot me once before. He shot at me last May, but missed me. We had a fuss about some beer bottles when he tried to shoot me in May. He gave me no warning when he shot me this afternoon. He just shot, and ran...