State v. Turner

• Decision Date: 14 July 1892
• Citation: 15 S.E. 602,36 S.C. 534
• Parties: STATE v. TURNER.
• Court: South Carolina Supreme Court

15 S.E. 602

36 S.C. 534

STATE v. TURNER.

Supreme Court of South Carolina

July 14, 1892

Appeal from general sessions circuit court of Spartanburg county NORTON, Judge.

George S. Turner, having been convicted of murder, appeals. Affirmed.

Bomar & Simpson, Nicholls & Moore, Duncan & Sanders, Melton & Melton and Johnstone & Cromer, for appellant.

Mr Schumpert, for the State.

McGOWAN J.

At the July term (1890) of the court of general sessions for Spartanburg county, George S. Turner was indicted and tried for the murder of Edward H. Finger. He was found guilty of murder, and sentenced to be hanged on October 5, 1890. From this verdict and judgment he now appeals to this court for a new trial upon alleged errors of law. There is no "case stated" digesting the testimony, from which the errors of law are claimed to arise, but it is all given just as it fell out in court; making a volume of more than 200 pages of printed matter. There are seven requests to charge, and in addition numerous grounds of appeal, (39 in number.) They are all in the record, and, of course, cannot be restated here. It is quite impossible to consider the matters seriatim. We assume that the able counsel for the defense classified the points to be considered so as to do the defendant full justice, and we will therefore follow the condensed order of their argument.

1. "It is alleged that there was error in allowing the witness Joseph Finger to be examined in reference to an ex parte affidavit he had made." Joe Finger was a brother of the deceased, and, having been present at the killing, was examined at great length. In the cross-examination he was interrogated about the statement he had made upon a particular point, at the inquest, and it was claimed that in his testimony he made statements which he had not made at the inquest before the coroner. In reply the solicitor called his attention to the discrepancy, and he was allowed to state that at other times his statements were the same--"consistent" --with his testimony, and in that connection he made reference to an affidavit which he had made before Mr. Wilson, about the time the defendant applied for bail. Objection was made that such explanation was "irrelevant," and not in reply to anything brought out in the cross-examination. The court ruled that he thought it competent, "where a witness is explaining his failure to make his two statements the same, to show that at other times, soon after he said what he did, he did not recollect at the coroner's inquest. That it is competent for him to show that this is not the first time he did recollect it. If the examination in reply relates to that, I think it is competent for the witness to show that his explanation was the proper one, by showing that he did remember it, and make the statement soon afterwards. I would not admit the reading of the whole affidavit, but only of that part that relates to the particular point." After this ruling the affidavit was not introduced. We do not think this was fatal error of law. Even if the evidence was, as claimed, "irrelevant," that would not be sufficient ground for a new trial, unless the circuit judge abused his discretion, which we do not think he did. See State v. Merriman, 34 S.C. 18, 12 S.E. Rep. 619. The cases of State v. Thomas, 3 Strob. 269, and Davis v. Kirksey, 2 Rich. Law, 176, cited for the defendant, are not analogous. In each of these cases the proposition was to adduce new and original testimony of "consistent declarations" of a witness who had been examined, and that after the testimony in the case had been regularly closed, which, of course, was refused. In the case of Davis v. Kirksey it is stated that, "after the plaintiff's evidence in reply was closed, the defendant offered to prove consistent declarations of a witness made at another time," which was rejected. In determining the judgment of the court, Judge FROST said: "In strict practice, he who has the affirmative ought to introduce all the evidence to make out his side of the issue. Then the evidence of the negative side is heard; and, finally, the rebutting proof, the affirmative, which closes the investigations. *** In the direct examination of a witness by the party producing him, all material facts are to be brought out in the first instance. On the cross-examination by the adverse party, he must elicit and produce all that he may require of the witness; and in the examination in reply, the party producing the witness is strictly confined to the examination of matters adduced by the cross-examination. No new question can be put in reply, unconnected with the cross-examination by the party producing the witness," etc. Now, taking this to be the correct rule, and applying it to this case. In the direct examination the witness could not foresee what would be asked him on the cross-examination. It turned out that he was interrogated as to the statement made by him at the coroner's inquest, doubtless with the view of affecting his credibility. In reply he was entitled to speak "as to all the matters adduced by the cross-examination." We cannot say that the judge erred in ruling that it was fairly in reply to allow the witness to make explanation--if he could--that, at the inquest over the dead body of his brother, he may not have recalled all the circumstances of the affair as fully as he did remember and state them soon afterwards. "After a witness has been cross-examined respecting a former statement made by him, the party who called him has a right to re-examine him as to the same matters." 1 Greenl. Ev. § 467.

2. "It is alleged that there was error in allowing the state to examine the defendant as to communications made to him by his wife." The defendant avalid himself of the privilege allowed to go on the stand as a witness in his own behalf. While being cross-examined by the solicitor, he was asked whether he had said that the deceased, Ed. Finger, had threatened his life, to which he replied, "Yes; my wife told me that he was threatening to blow my brains out." The solicitor then asked, "What for? What did your wife tell you he threatened you for?" to which the defendant said, "I decline to answer that question." The solicitor then changed the form of the question, as follows: "What else did your wife tell you at that same time and that same conversation?" The judge ruled that, as an original question, the defendant could not be compelled to disclose the confidential communications of his wife; but having, without being asked, voluntarily told part of a communication, he did not know that it was an exception to the general rule laid down in the books, that when a part of a communication is brought out, the whole of it may be brought out. It would seem that this was not in violation of the law, which provides that "no husband or wife shall be compelled to disclose any confidential communications made by one to the other during their marriage."

3. "That it was error to allow the state to bring out in an indirect manner, from Clara Finger, anything that had transpired between herself and the defendant." This exception is certainly too vague and general to be considered. The whole of the testimony has been carefully read, and we really do not clearly see to what part of the record reference is made.

4. "There was error in allowing the witness Daniel Willis to testify that he would not believe Harriet Henderson on her oath, or to refuse to strike out the testimony on motion of the defendant." The Harriet Henderson referred to had been examined as a witness for the defense. Willis, with others, was examined to discredit her. He was asked if he knew Harriet Henderson, and he replied that he knew her when he saw her, but had no personal acquaintance with her. "Question. Do you know her general reputation in this community? Answer. Yes, sir; I have heard her spoken of frequently. Q. What people say about her in the community? A. Yes, sir. Q. Is it good or bad? (Counsel objects that the answer to the preliminary question did not authorize the examination to proceed.)" His honor, the judge, then put the question: "Question. Would you say that you had heard any general conversation as to her character?" to which the witness replied, "I think so; yes, sir;" whereupon the judge allowed the examination to proceed, and the witness testified that the character of Harriet Henderson was not very good, and from that character he would not believe her on her oath. Counsel for the defendant afterwards moved to strike out the testimony, which the judge refused saying: "Because I think the witness had shown sufficient knowledge of the general character of the witness concerning whom he was testifying to say whether or not he would believe her on oath." The expression "general character" has always seemed to me to be somewhat vague and undefined; depending somewhat on the habits, condition in life, age, sex, etc., of the person referred to. We do not understand that the judgment required by the formula must be based upon the declarations of any particular number, for what would be general character as to one might not be as to another, but upon the general...