State v. Williamson

• Decision Date: 19 February 1903
• Parties: STATE v. WILLIAMSON et al.
• Court: South Carolina Supreme Court

43 S.E. 671

65 S.C. 242

STATE v. WILLIAMSON et al.

Supreme Court of South Carolina

February 19, 1903

Appeal from General Sessions Circuit Court of Greenwood County.

Henry R. Williamson and Charley Snow were convicted of assault with intent to kill, and appeal. Affirmed.

Graydon & Giles and Wm. N. Graydon, for appellants.

Assistant Attorney General Gunter, for the State.

JONES J.

The defendants, Williamson and Snow, were indicted for an assault and battery with intent to kill one J. H. Werts, and now appeal from the judgment and sentence rendered upon the verdict against them.

1. The first six exceptions complain of error in not excluding as incompetent certain jurors who, when examined upon their voir dire, said they had formed and expressed their opinion as to the guilt or innocence of the accused, and that it would require evidence on the part of the defendant to remove that impression from their minds. Section 2944, Code 1902 provides the court, on motion of either party to suit, shall examine any person called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and further provides that the juror shall be placed aside "if it appears to the court that the juror is not indifferent in the cause." Numerous cases from State v. Dodson, 16 S.C. 459, to State v. Robertson, 54 S.C. 151, 31 S.E. 868 construing the statute, declare that it invests the circuit court with exclusive power to determine whether a juror after examination on his voir dire, is indifferent in the cause. Whether a juror is indifferent in the cause is a question of fact which is not reviewable in this court, unless, perhaps, it should appear that the conclusion of the circuit court is wholly without any evidence to support it. In this case, while it is true the jurors, when examined, said they had formed or expressed an opinion as to the guilt or innocence of the accused, and that it would require evidence to remove that impression from their mind, they also declared that they were not conscious of any bias or prejudice for or against either of the defendants, and would decide the case according to the evidence, uninfluenced by such opinion. It cannot, therefore, be said that the conclusion of the circuit court was without any evidence to support it. We do not think that any error of law was committed as complained in these exceptions.

2. While the defendant Charlie Snow was on the stand as a witness, the solicitor asked him if he had not been indicted at Newberry for perjury. Defendant's attorneys objected to the question on the two grounds that it was improper to impeach the character and testimony of the defendant in that way, and that the record was the best evidence. The court allowed the question to be asked, and the defendant refused to answer it. This ruling is the basis of the seventh exception, which assigns error therein "(a) in attempting to prejudice the jury against defendant whether he was convicted or not; (b) in trying to prove a record by parol evidence." A defendant in a criminal case cannot be compelled to be a witness against himself, as declared in article 1, § 17, of the Constitution (Town Council v Owens, 61 S.C. 24, 39 S.E. 184); but if he desires to testify in his own behalf, he shall be allowed to do so, under the provision of section 64, Cr. Code; and when he voluntarily elects to be a witness in his own behalf he thereby assumes the position of any ordinary witness ( State v. Robertson, 26 S.C. 117, 1 S.E. 443; State v. Wyse, 33 S.C. 582, 12 S.E. 556; State v. Merriman, 34 S.C. 39, 12 S.E. 619; State v. Turner, 36 S.C. 540, 15 S.E. 602). While it may be true that a defendant, by taking the stand as a witness, does not thereby permit his general moral character to be impeached, he does thereby put in issue his character for truth and veracity, and is subject to the rules which govern the cross-examination of ordinary witnesses in testing credibility. State v. Mitchell, 56 S.C. 532, 35 S.E. 210. Every witness, of course, is privileged from answering any question tending to criminate himself; but no question of privilege is involved here, as no objection on the ground of privilege was interposed to the question of the solicitor, and the defendant in fact refused to answer the question, and no effort to compel him to answer was made. It will be further observed that the question was not objected to as irrelevant on the ground that a mere indictment for perjury would not tend to show that defendant was not veracious. The specific objection urged in the exception is that the question sought to prove a record by parol. To this two answers may be given: First, that no legal prejudice has been suffered, as the question was not answered, and no parol testimony to prove a matter of judicial record was, in fact, received; and, second, the question was competent, under the rules governing cross-examination. It would be competent, when a defendant becomes a witness in his own behalf, for the purpose of impeaching his credibility, to show that he had been indicted and convicted of perjury. If it were sought to do this by independent evidence, it would be necessary, on objection made, to produce the record of conviction; but more latitude is allowable where the defendant himself is cross-examined as a witness touching such charge and conviction. In Wharton's Criminal Evidence, § 474, the author says: "In this country there has been some hesitation in permitting a question the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, to require an answer." In this case the question was merely permitted, subject to the defendant's claim of privilege from answering. In the case of Clemens v. Conrad, 19 Mich. 170, over an objection that the testimony involved a matter of record, a witness was required to answer if he had not been indicted and convicted of a criminal offense, and Judge Cooley, speaking for the court, said: "We think the reasons for requiring the record evidence of a conviction have very little application to a case where the party convicted is himself upon the stand, and is questioned concerning it with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight that it may be looked upon as purely imaginary; while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent." It is true, this language was applied to a case when the witness cross-examined was not a defendant, and it may be said that the state's attorney shall always be prepared to expect the defendant to take the stand. In the case of Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203, where the defendant was sworn as a witness, the court held it allowable on cross-examination to ask the witness whether he was ever confined in a state prison; and among the reasons given the court said: "It is not very easy to conceive why this knowledge may not be as properly derived from the witness as from other sources. He must be better acquainted than others with his own history, and is under no temptation to make his own case...