13 S.C. 459 | S.C. | 1880
The opinion of the court was delivered by
William Belcher was indicted for the murder of his wife, Elizabeth. The inditment contained two counts, one for murder by actual violence — beating and kicking— and the other by neglecting to provide necessaries for her when she was sick and helpless, from which neglect she died. The jury found him guilty on the first count, and he appeals to this court for a new trial, upon the following grounds:
1. “Because the Circuit judge erred in allowing the declarations of the deceased to come in evidence against her husband, contrary to Section 415 of the code of procedure.
2. “ In allowing the declarations of the deceased to come in evidence against the accused, when the said declarations were made to Dr. W. A. Harrison, on April 21st, and the deceased did not die until July 12th, 1879.
3. “Because Guilford Mason, one of the petit jurors in attendance upon court, and whose name was drawn as one of the jurors to be presented to the prisoner, was not so presented.
4. “ Because the members of the jury were separated at one time during the trial.
5. “Because there was no proof as to the time when the accused struck the blows, from the effects of which, as alleged in the indictment, Elizabeth Belcher afterwards died.
6. “Because there was no legal proof that Elizabeth Belcher died from the effects of the said blows.
7. “ Because the verdict is contrary to the law and the evidence.”
The fifth, sixth and seventh exceptions charge no error of law, but alleged insufficiency of proof, and might properly have been submitted to the Circuit judge, upon a motion for a new trial, but we are not at liberty to consider them here.
The fourth exception charges that the jurors were allowed to separate at one time during the trial. The Circuit judge reports “ that there was no request to keep the jurors together,
The third exception charges that Guilford Mason, one of the petit jurors, whose name was drawn, was not presented to the prisoner. Upon this point, the judge reports that “Guilford Mason had been excused, and when his name was drawn, it may have been pronounced by the clerk, but it was not called as that of a juror who was present, or who was expected to serve, but was put aside and another juror called and sworn. The view of the judge was, that the state selects the panel and presents the jurors to the prisoner, who exercises not the right of selection, but of objection to the jurors presented. The prisoner freely exercised the right, and in the call of jurors, twelve were presented, to whom he made no objection. The action of the clerk in relation to the juror was not, at the time, excepted to.” "We find no error here. The absence of the juror was by authority of the court, and it was the same as if he had been detained at home by sickness. If the prisoner had any right to complain, he should have made the objection at the time. Gen. Stat. 523, ch. CXI., § 29; State v. Coleman, 8 S. C. 242.
The first and second exceptions relate to the admissibility of the statements of the deceased, as proved by Dr. Harrison, and will be considered together. The judge reports that “Dr. W. A. Harrison testified that he visited deceased as a physician, April 21st, 1879; was called in to see her at Dr. Nesbits’; she was in a wretched condition; made an examination; found her suffering pain, &c.; her general appearance indicated enemia; her appetite was good; she may have been in that condition for months. She said her condition was caused by her husband; he threw her down; jumped upon her on her womb, and there remained on her ; beat her on her breast and sides. She had been in the condition in which he then saio• her, ever since. She thought,
The evidence is also objected to on the ground that they were not “dying declarations.” Hearsay is evidence of facts with which the witness is not acquainted, but which he merely states from the relation of others, and is inadmissible for the double reason that the party_ originally stating the facts does not speak under oath, and the party against whom the evidence is offered has no opportunity to cross-examine the party making the statements. The only case in the whole range of the criminal law where evidence is admissible against the accused without an op
It was further suggested that the testimony was admissible as • part of the res gestee. The Circuit judge reports that it was admitted on that ground; but we think that it was equally inadmissible on that ground. We understand the rule of evidence as to res gestee to be this: Where the inquiry is as to a certain transaction not only what was done, but also what was said by those present during the transaction, is admissible for the purpose of explaining its character. Thus, as an illustration, it was held in the prosecution of Lord George Gordon for high treason, that the cry of the mob which accompanied the prisoner was admissible as part of the transaction. Rex v. Lord George Gordon, 21 How. St. Tr. 534. Declarations which accompany the act characterize it; but to do so the declarations must be by the persons engaged in the act, contemporaneous with it, if not precisely concurrent in point of time, and proved as other facts by witnesses. To make declarations a part of the res gestee, they must be contemporaneous with the main fact, not, however, precisely con
The statement of the deceased to Dr. Harrison was not part ■of the transaction of which she complained, nor evidence of it, and his testimony as to that statement should have been excluded.
The judgment of the Circuit Court is set aside, and a new trial granted.