State v. Talbert

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

19 S.E. 852

41 S.C. 526

STATE v. TALBERT.

Supreme Court of South Carolina

June 25, 1894

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 appellant.

W. St Julien Jervey, 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 28th 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, a 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 adopt. After talking with him a few minutes, I left to go home. On my way I stopped at Mr. Green's store. As I left Mr. Green's, and got as far as him 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 a 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 away. After I was shot, I crawled back to Mr. Green's store, and told him that Talbert had shot me. Mr. Green helped me in the piazza. Sworn to before me this 28th day of November, 1893. D. L. Sinkler [L. S.], Notary Public, S.C. Witness: R. S. Cathcart, M. D." The defendant's grounds of appeal are as follows: "(1) Because his honor erred in admitting what was called the dying declarations of the deceased, the same being under oath, and a part of which was as to matters not connected with his (deceased's) death; (2) because the court erred in not allowing a witness for the state (R. H. Sweeny, Esq., trial justice) to testify what offense he had charged in a warrant issued by him against one James Oliver; (3) because the court erred in not allowing the defendant and other witnesses to prove what was said to the defendant at his (defendant's) house a few minutes after the gun was fired, and yet allowed witnesses for the state to testify what was said to them by the deceased soon after he was shot, the defendant not being present; (4) because his honor erred in not allowing the defendant and two of his witnesses to give the answer of the deceased to a question asked said after the shooting, all of which was germane to the issue."

The first ground of appeal presents two objections to the admissibility of the paper received as a dying declaration (1) Because it was under oath; (...