State v. Dean

Jul 1, 1905

Reporters:: , ,
Before:: Gary

The opinion of the Court was delivered by

Mr. Justice Gary.

The defendant was indicted for the murder of Miller McKinney, and the jury rendered a verdict of “guilty, with recommendation to the mercy of the Court.” The defendant appealed from the sentence of the Court upon exceptions which will be set out in the report of the case. The exceptions will be considered in their regular order.

1 First exception: The ground of objectiоn was not stated; but waiving this objection, the following authorities show that the ruling of the presiding Judge was free from error. Berry v. Jourdan, 11 Rich., 67; State v. Collins, 15 S. C., 373; Hicks v. Ry., 63 S. C., 559, 41 S. E., 753. In section 866, vol. 2, оf the recent and exceedingly able publication — Elliott on Evidence — the rule is stated that “a witness may refresh his memory from nоtes taken by counsel or other persons at a former trial, or from his own testimony at a previous trial, or from a copy of the same.”

*82 2 *81 Second and third exceptions: These exceptions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍will be considered together. In the case of State v. Adams, 68 S. C., 421, 47 S. E., 676, it is sаid: “The rule is that a defendant can not introduce in his defense, his own state *82 ments made to others.” The rule is thus stated in 9 Enc. of Law (1st ed.), 692: “Dеclarations and statements made by defendant, before the homicide, regarding matters connected therewith, are nоt admissible in his defense, unless they form a part of the res gestae; but where they tend to show motive for committing the homicide, or malice in its cоmmission, they may be proved by the prosecution.” The declarations were not a part of the res gestae. State v. Lindsey, 68 S. C., 276, 47 S. E., 389; State v. McDaniel, 68 S. C., 304, 47 S. E., 384. These authorities likewise show that the question whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍certain facts are embraced within the doctrine of res gestae, must be left in large measure to the sound judicial discretion of the presiding Judge.

3 Fourth, fifth, sixth, seventh and eighth exceptions : These exceptions present the same question and will be considered together. The appellant relies upon the case of State v. Smith, 12 Rich., 430, 440, to sustain the assignments of error. The Cоurt in that case thus stated the facts relative to the first ground upon which the new trial was granted: “It appears from the report of the trial that when Daniel Fogarice, a witness for the defense, was on the stand, Mr. Simons, the prisoner’s counsel, proposed ‘to show by this and other testimony, that the deceased was a turbulent and violent man, and carried arms about him, and that this was generally known,’ which ‘evidence as to deceased was ruled out.’ ” The testimony proposed for the purpose of showing that the deceased was a turbulent man, and that this zvas generally knozvn, was the same in effect as if there had been an offer to introduce testimony to еstablish the fact that the general reputation of the deceased for violence was bad. The testimony was, therefоre, competent. The facts upon which the second ground ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for a new trial was sustained, were stated as follows: “When Michаel McFeeny was sworn for the prisoner, Mr. Simons said: T propose to show that on the day before this occurrence (the death of Saffron), the deceased and witnesses were *83 employed together, and that this witness was with them; that the deceased then exhibited a quarrelsome and violent disposition, and attacked the witness; and that on this occasion the prisoner interposed and separated them, and that the deceased had threatened the prisoner.’ ” The testimony was excluded, and the ruling of the presiding Judge was reversed.

It will be observed, 1st, that the occurrence took place only a short time (the preceding day) before the homicide; 2d, that the prisoner had personal knowledge of, and connection with, thе difficulty, and, 3d, that the deceased threatened the prisoner. The facts of the case under consideration are different from those in State v. Smith in at least the second and third particulars just mentioned. The defendant, Dean, was in no wise connected with the acts of violence described in the exceptions, except in so far as they may have been the basis of the general reputation of the deceased for violence.

In the case of State v. Turner, 29 S. C., 34, 6 S. E., 891, the exceptions assigned error in not allowing certain witnesses to testify as to the general ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reputation of the deceased for violence. The exceptions were sustained. The case of State v. Merriman, 34 S. C., 16, 13 S. E., 329 (cited with approval in Sweet v. Gilmore, 52 S. C., 530, 30 S. E., 395), decides that the proper mode of attacking character for violence is by testimony of general reputation, and not by proving particular acts of violence. In the case of State v. Dill, 48 S. C., 248, 26 S. E., 567, exceptions similar to those under consideration were overruled, and the Court pointed out the confusion that would arise from allowing testimony as to particular acts of violence for the purpose of showing that the party whose character was attacked was of a turbulent disposition. The case of State v. Dill, supra, is cited with approval in State v. Thrailkill, 71 S. C., 136. The rule in this State is in accord with the weight of authorities elsewhere. 5 Enс. of Law, 875.

*84 4 *83 Ninth exception: The modification was merely *84 explanatory, and it did not materially change the request.

5 Tenth exception: The request was too sweeping in its language, as it failed to recognize the principle that a party ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍has not the right to set up the plea of self-defense unless he was without fault in bringing on the difficulty.

6 Eleventh, twelfth, thirteenth and fourteenth exceptions: These exceptions, will be considered together. The record does not disclose the faсt whether the nineteenth request was charged or refused. Immediately after the request we find the following words used by the presiding Judge: “I dо not see the use of reading any further on this question of self-defense.” He did not charge the twentieth, twenty-first and twenty-second requests. The charge was full upon the law of homicide, and substantially covered all the phases applicable to the сase, embracing the propositions embodied in the requests.

7 Fifteenth exception: The presiding Judge charged the law specifically and clearly as to the right of self-defense based upon apparent necessity; also as to manslаughter. Furthermore, when this portion of the charge is construed in connection with the entire charge, it will be seen that it was free from error.

Sixteenth exception: The presiding Judge did not charge that the jury could not find the defendant guilty of manslaughter, if the killing was intentional; on the contrary, his charge shows that his view of the law was otherwise.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.