State v. Wright

• Decision Date: 06 July 1927
• Docket Number: 12230.
• Citation: 138 S.E. 828,140 S.C. 363
• Parties: STATE v. WRIGHT.
• Court: South Carolina Supreme Court

138 S.E. 828

140 S.C. 363

STATE v. WRIGHT.

No. 12230.

Supreme Court of South Carolina

July 6, 1927

Appeal from General Sessions Circuit Court of Berkeley County; C. C Featherstone, Judge.

Jeremiah Wright was convicted of murder, and he appeals. Affirmed.

Wolfe & Dennis and Marion F. Winter, all of Moncks Corner, for appellant.

Jas Allan, Sol., and T. P. Stoney and A. R. McGowan, all of Charleston, for the State.

WATTS C.J.

The appellant stood charged with the murder of one Jervey Mitchum, and was tried before Hon. C. C. Featherstone presiding judge, with a jury, at the November, 1926, term of the general sessions court for Berkeley county.

Upon a verdict of manslaughter, he was sentenced to serve from 8 to 16 years of imprisonment. From this sentence he appeals to the Supreme Court, having given due written notice of intention to appeal as provided by law.

The court of general sessions for Berkeley county convened on Monday, November 8, 1926, on which day an indictment was handed out to the grand jury by the solicitor, charging the appellant with murder as before stated, and the grand jury returned a true bill thereon during the afternoon of said day.

About 6 o'clock in the afternoon of Monday, November 8, 1926, the appellant, who had been out upon recognizance or bond, was called to the dock and placed therein, whereupon he was arraigned by the clerk of court, and asked if he was ready to come to trial, and his counsel answered, "No," and further stated that they then desired to make a motion for continuance beyond the term, because of the absence of a material witness, who was them confined in a hospital. The court heard argument upon this motion, and then stated that he would not decide the motion for continuance at that time, but would take the motion papers and announce his decision the next day. Thereupon counsel for defendant asked that the defendant, appellant, go at large upon his recognizance until the day set for his trial. The solicitor objected, and demanded that he be committed to the jail. The court decided that his bond had ended, and that he should remain in the custody of the sheriff, who thereupon committed him to jail.

The bond or recognizance is in usual form and for the sum of $5,000; he having been let to bail by the Chief Justice. The condition of his recognizance is as follows:

"*** Then and there to answer to a bill of indictment to be preferred against (him) and to do and receive what shall be enjoined by the court, and not depart the court without license. ***"

On Tuesday morning, November 9, 1926, the presiding judge announced that he would refuse the motion for a continuance upon the condition that the State would admit the testimony of the absent and sick witness, and further that he would set the case for trial for Thursday morning, November 11, 1926.

Thereupon counsel, for the appellant objected, stating that they had not had three days' sight of the indictment, nor had the defendant been arraigned for three days, nor would they be ready for trial as soon as the date fixed.

Again on Thursday morning, November 11, 1926, when the case was called for trial, counsel interposed the same objections, stating that the defendant was not ready for trial, had not been arraigned for three days, and had not had three days' sight of the indictment.

The presiding judge, after stating the foregoing facts, held that the defendant had been arraigned for three days and had been given three days' sight of the indictment, ordered the case to proceed to trial.

The evidence was to a considerable extent circumstantial. The evidence relating to the killing tended to show concert of action between the defendant and others.

The exceptions are:

"(1) His honor erred in committing the defendant to jail after his arraignment, whereas he should have allowed him to continue at large upon his bail until verdict of the jury.

(2) His honor erred in not allowing the defendant three days' sight of the indictment and three days after arraignment was completed before entering upon his trial.

(3) His honor erred in charging the jury that circumstantial evidence 'is just as good as positive evidence,' thus expressing an opinion upon the weight which should be accorded circumstantial evidence as compared with positive evidence.

(4) His honor erred in charging the jury the law relating to conspiracy, which constituted prejudicial error, in that no such issue was involved in the case, as the indictment did not charge any element of conspiracy, nor did the indictment charge a joint homicide, but that the defendant acting alone and solely committed the alleged unlawful homicide.

(5) His honor erred in charging the jury that this case was 'a serious case,' thus expressing his opinion to the jury of the character of the case as made out by the testimony, and stating to the jury the impression which the testimony had made upon his mind.

(6) His honor erred in charging the jury that they were there on the jury to find the truth in this case, using the words, 'What is the truth in this case; that is what you are there to find; that is the only object of your inquiry,' whereas, the jury were not bound or required to find the 'truth' as to the facts of the homicide; that is to say, the jury were not bound to find who killed the deceased, but were limited in their inquiry as to whether the defendant fired the fatal shot, and, if so, under what circumstances."

The first exception is overruled. Rule 35 of the circuit court is as follows:

" Presence of Accused on Trial.-No person shall be tried on an indictment unless personally present, except for misdemeanors; and, upon the trial of any person charged with an offense for which the law requires that he should be arraigned, the prisoner shall be placed in the dock.

And after arraignment the prisoner shall remain in custody of sheriff until discharged therefrom by due process of law; and that the condition of all recognizances in cases of felony be so drawn as to require the accused to appear and plead to such indictment as may be preferred against him."

Rules are binding in the trial of cases when not in conflict with acts of Legislature. Rice v. Mahaffey, 9 S. C. 281. We find the following in 26 R. C. L. p. 1021, "Trial," § 18:

" While statutes exist in some jurisdictions which prevent the trial judge from ordering an accused, out on bail, into custody during the trial, and some courts have held it an abuse of discretion to make such an order in the absence of circumstances justifying it ( State v. Hyde, 234 Mo. 200, 136 S.W. 316, Ann. Cas. 1912D, 191), the general rule may be said to be that the trial court has the right, in its discretion, to order a defendant who has been at large on bail, into custody during the trial."

See Ann. Cas. 1912D, 211.

Where a defendant has been at large on bail, the court has, as a general rule, in the absence of constitutional or statutory provision to the contrary, the right in its discretion to order him into custody during the trial of the case, it being a power inherent in the court to assure itself of the presence of the accused during trial. The recognizance is not a contract by which ...