34 S.C. 41 | S.C. | 1891
The opinion of the court was delivered by
In this case the defendant was indicted for and convicted of the murder of one Lem Jackson, called
In view of the law as thus laid down by this standard author, we do not see how it is possible to question the correctness of the Circuit Judge’s ruling. The evidence offered and excluded was not only “a narrative of past occurrences,” but it was offered before any testimony had been adduced even tending to show that a conspiracy had ever existed. There was nothing to show that there were any such “particular and urgent circumstances’'’ which may sometimes warrant a judge, in the exercise of his discretion, in permitting a departure from the usual and regular order of the proof upon the assurance that the preliminary proof would subsequently be furnished. But at all events, this is a matter which “rests in the discretion of the judge,” which we think was properly exercised in this instance, and there certainly was no error of law in refusing to receive the declarations of one who was claimed to have been one of the conspirators. The case of State v. Cardoza (11 S. c., 195), relied on by appellant’s counsel, is not applicable, for in that case there was some evidence of the existence of the conspiracy before the declarations of alleged co conspirators were received ; and the fact that it came from an accomplice did not render it incompetent, but could only affect its credibility. And as it is the province of the Cir
The cases of State v. Coleman (6 S. C., 185) and State v. Hopkins (15 Id., 158), do not apply, for those cases simply held that while the law presumes malice from the mere fact of intentional killing, yet when the circumstances under which the homicide was committed are brought out, there is no room for such presumption, and the State must prove the malice. Now, in this case it does not appear from the charge as set out in the “Case” that the Circuit Judge laid any stress whatever on the legal presumption arising from the mere fact of killing, but, on the contrary, explicitly instructed the jury that the State was bound to prove malice beyond a reasonable doubt; and unless this was done, the prisoner could not be convicted of murder. We desire to say that in considering this ground of appeal we have copied precisely the language as found in the printed record submitted to us, both in the fourth ground of appeal and in the charge of the judge, though it is very obvious that there are typographical errors in both, which, however, do not affect the sense, but simply produce awkwardness of expression ; and it is but simply justice to the judge, as well as to the counsel for appellant, that we should make this statement.
The judgment of this court is, that the judgment of the Circuit Court be .affirmed, and that the case be remanded to that court for the purpose of having a new day assigned for the execution of the sentence heretofore imposed.