State v. Wise

• Decision Date: 06 January 1891
• Citation: 12 S.E. 556,33 S.C. 582
• Parties: State . v. Wise.
• Court: South Carolina Supreme Court

12 S.E. 556

33 S.C. 582

State .

v.Wise.

Supreme Court of South Carolina.

Jan. 6, 1891.

Criminal Law—Twice in Jeopardy — Self-Defense—Impeachment of Witness—Review.

1. Const. S. C. art. 1, § 18, declaring that "no person, after having been once acquitted by a jury, shall again, for the same offense, be put in jeopardy of his life or liberty, " repeals and supersedes the common law, and, where a conviction of murder is set aside on appeal, the accused may be again tried upon the same charge.

2. A charge in regard to self-defense, that the jury should ask themselves what they would have done under the circumstances surrounding the accused at the time, and should "place themselves in the shoes of defendant, " was properly rejected. The true questions for them to determine were whether defendant believed he was in such imminent danger of his life, or of serious bodily harm, as to require taking the life of his assailant, and whether the circumstances were such as to justify that belief in the mind of a person of ordinary fairness and reason.

3. Where an accused person, who testifies in his own behalf, on cross-examination denies that he was arrested and convicted of a larceny before a justice of the peace, his conviction may be proved by the record of such case.

4. When such record is not incorporated in the " case, " but it appears from the testimony of the justice that the person who made the arrest and signed the return upon the warrant was his constable, it will be presumed that he was a constable, and had authority to make the arrest. Distinguishing State v. Cohen, 13 S. C. 198.

5. A witness for the prosecution testified, on cross-examination, that he had made about the same statements on a former trial, and was then asked why he had told certain persons that he had been made to swear lies on that trial, and answered that he had not told them any such thing. He was then asked if one of said persons did not say to him that he ought to be put in the penitentiary, and made to break rock the rest of his life. Held, that the question was properly excluded, since the answer sought was hearsay, and the issue was collateral.

6. Evidence offered to prove threats against the prisoner by the deceased will be excluded when it only tends to show that deceased "had a prejudice" against him and two others, on account of a woman, and that he expressed himself strongly as to what he would do and suffer for her, without making threats against any one.

7. Where, on appeal, the supreme court reverses the circuit court, and a remittitur is sent down, the circuit court regains jurisdiction, even though the judgment of the supreme court did not order the case remanded.

8. The supreme court will not review the trial court's exercise of discretion in refusing a continuance because of the absence of a material witness for the defense.

Appeal from general sessions circuit court of Lexington county; 1. D. Witherspoon, Judge.

Meetze & Muller, for appellant.

P. H. Nelson, for the State.

McIver, J. This is the second appeal in this case, the first being reported in 10 S. E. Rep. 612, as well as in 32 S. C. 45. The former appeal resulted in a judgment of this court in the following language: "It is the judgment of this court that thejudgment of the circuit court be reversed. " The remittitur having been sent down to the circuit court, the appellant was again put upon his trial, and when the case was called for trial his counsel moved for a continuance on the ground of the absence of John Moore, one of his witnesses, who had testified at the former trial; when the solicitor agreed to admit that such witness would give the same testimony as that found in certain folios of the "case" as prepared for the former hearing in this court, subject, however, to his objection to the competency of such testimony, which, when it was offered, was ruled incompetent. Counsel for the prisoner then made the point that, the supreme court having simply reversed the judgment of the circuit court rendered at the former trial, without remanding the case for a new trial, the prisoner could not again be put upon his trial. The point was overruled by the circuit judge, and the prisoner was arraigned and pleaded not guilty, and the trial proceeded in the usual form, which again resulted in a conviction of murder, upon which judgment was duly rendered, and the prisoner again appealed upon the several grounds set out in the record.

The first and second grounds raise the question as to the correctness of the ruling of the circuit judge as to the effect of the form of the judgment of this court upon the hearing of the former appeal. The contention on the part of the appellant is that the judgment of the circuit court in the former trial having been simply reversed, without any order remanding the case for a new trial, the prisoner cannot again be put upon his trial, for the reason that, the case having been carried to the supreme court, the circuit court thereby lost jurisdiction of it, and could not again acquire jurisdiction without an order of the supreme court remanding it to the circuit court. This position, however, wholly ignores the effect of the remittitur, by which, as has often been held, this court loses its jurisdiction, and the same is restored to the circuit court. It is clear, therefore, that there is no foundation for the objection to the jurisdiction of the circuit court.

It might, however, be contended that the prisoner having once been tried and convicted, and judgment having been rendered upon such conviction, which judgment has been reversed, not upon the ground that the indictment under which he was tried was invalid or fatally defective, he cannot be tried again without violating the fundamental maxim of the common law, "that no man is to be brought into jeopardy of his life more than once for the same offense, " (4 Bl. Comm. 335;) which has been, in substance, incorporated into the constitution of the United States, as well as of the constitutions of many of the states. Now, while the terms in which this maxim is expressed, as well by writers on the common law as in some constitutions, have given rise to many decisions as to when a person can be said to have been once " brought into jeopardy of his life, " no such question can arise under the terms of the constitution of this state art. 1, § 18, which reads as follows: "No person, after having been once acquitted by a jury, shall again, for the same offense, be put in jeopardy of his life or liberty;" for, as is said by Mr. Justice McGowan in State v. Shirer, 20 S. C. 406: "We do not understand that this constitutional provision is to be considered as merely declaratory of the common law, but, on the contrary, as superseding and repealing it, whenever the two are inconsistent with each other." And after quoting from Bishop on Criminal Law, to show that a constitutional provision is controlling, he proceeds to say: " We cannot doubt that this provision in the constitution, which deals with the subjects and touches the very essence of the matter, was intended to be exclusive and exhaustive, —indeed, our only law on the subject." From this it follows that one who claims the benefit of the principle upon which the common-law maxim rests, must derive his claim solely from the principle as declared in our constitution, and bring himself within the terms as there stated. Now, as there is no pretense that the appellant has once been acquitted by a jury of the offense with which he is now charged, it is quite clear that he could not avail himself of the exemption secured by the constitution from a second trial for the same offense. Indeed it seems to be well settled, even where the principle, as stated in the terms of the common-law maxim, prevails, that where the defendant, on his own motion, secures a reversal of a judgment of conviction, he thereby waives any objection to being put a second time in jeopardy, and may be tried again for the same offense. See 1 Bish. Crim. Law, § 998 et seq. But under the express terms of our constitution, as we have seen, it is unnecessary to consider this view. It seems to us clear, therefore, that neither the first nor second ground of appeal can, in any view, be sustained.

The third, fourth, and fifth grounds of appeal impute error to the circuit judge in sustaining an objection interposed by the solicitor to a certain question proposed to a witness for the prosecution, one Solomon Meetze, by counsel for the prisoner on his cross-examination. This witness, after saying that he had been examined at the former trial, and then made about the same statement that he now makes, was asked why he had told Tyler Caughman and Calhoun Caughman that he had been made to swear lies in this case, to which he replied that he never said any such thing. Up to this point no objection seems to have been...