State v. Dill

Feb 6, 1897

Reporters:: , ,
Before:: Pope

The opinion of the Court was delivered by

Mr. Justice Pope.

The defendant was tried at the July term of the Court of General Sessions for Spartan-burg County, in this State, before Judge Witherspoon and a jury, for the murder of one John D. Kirby. The verdict was guilty of manslaughter, and after judgment the defend*255ant appealed therefrom. The grounds of appeal will be set out in the report of the case.’

1 The first three of the grounds of appeal may be considered together, and embrace the same question, namely: Is it competent in the cross-examination of a witness, who has testified in his direct testimony that a defendant on trial for murder is a peaceable citizen and in good order as such, to ask such witness if the defendant is not known to habitually manufacture and sell whiskey in open violation of the law? The object of the defendant in putting in evidence his general character for peace and good order, is to give sonie evidence of the absence of an evil intention on his part, and thus to negative a malicious intent. It is certainly a character highly to be commended, when witnesses testify that a citizen lives in peace and good order. An open defiance of the laws of one’s country, by manufacturing and selling whiskey, does not entitle one to be considered as living orderly. The testimony on cross-examination, objected to, seems to us not only relevant but competent as well. These exceptions are overruled.

2 The fourth exception complains of the conduct of the Circuit Judge in denying to the defendant the right to have his own witness, R. B. Babb, testify, in reply, as to what he had told one C. C. Bearden. It seems that for the purpose of contradicting the testimony of R. B. Babb, who was a witness for the defendant, the solicitor asked Babb if he had not made a certain statement to C. C. Bearden at a given time and place, which Babb denied flatly. Then it was that, in his reply, the defense asked him what he had stated to Bearden, and to the answer of this question the solicitor objected. The Court ruled that the solicitor had only laid the foundation to his right to impeach Babb’s testimony, which right he might or might not, in his discretion, employ. Hence, until this was actually done, the defense had no right to have this witness testify as proposed. We see no error here; for clearly until the actual effort to contradict this witness was made, no *256such testimony was relevant or competent. This ground of exception is overruled.

3 Exceptions 5, 6, 7, and 8 are considered by the appellant as raising the single question as to the right of the defendant to offer in evidence a bill of indictment against the deceased, John D. Kirby, for the murder of one Hammett. The defendant and his witnesses had been allowed to state as a fact that John D. Kirby had killed Hammett, in order to show that the defendant knew Kirby was of a violent, dangerous character, and, besides, that Kirby had the character, while alive, of being a dangerous man. The defense, not content with this latitude, insisted that this indictment should also be introduced. Wha.t would have been the practical effect of such a ruling if it had been made by the Circuit Judge? There would have been thrust upon the attention of this jury, charged as they were with the trial of Dill for the murder of Kirby, an indictment of Kirby for the murder of Hammett. Under such circumstances the solicitor might have demanded the privilege or right to show by evidence that Kirby was not guilty of the murder of Hammett. Such a contingency has .but to be stated to show how untenable is the contention of the defense in the case at bar. The Circuit Judge committed no error in this matter. The cases of State v. Smith, 12 Rich., 430, and State v. Turner, 29 S. C., 34, do not sustain any such contention.

4 *2575 *256The ninth exception complains of error, in the Judge-on Circuit, in not holding that the arrest by Kirby, the deceased, of Dill, the defendant, on the 6th of March, 1896, was unlawful. The only evidence in the record of what position Kirby held is found in the Judge’s charge, when he speaks of the testimony as referring to Kirby as having acted as deputy marshal of the United States in this State. We cannot say that the Judge was in error here. The section of the U. S. Revised Statutes— section 788 — provides: “The marshals and their deputies shall have, in each State, the same powers in executing the laws of the United States as the sheriffs and their deputies *257may have by law in executing the laws thereof.” It is very clear that what is known as the dispensary law of this State amply provides that sheriffs and their deputies may seize contraband liquor, and arrest persons guilty of manufacturing or selling alcoholic liquors without a warrant, provided a warrant shall be procured within a reasonable time thereafter. Secs. 23, 33, 34, 42 of “An act to provide for the election of the State board of control, and to further regulate the sale * * of intoxicating and alcoholic liquors and liquids * * *” 22 Stat. at Darge of this State, pp. 123-149. The presiding Judge does not decide, in his charge, that Kirby was acting as deputy marshal of the United States: he very properly leaves that as a fact to be determined by the jury. The Circuit Judge does declare that if Kirby was acting as such deputy marshal, he would have the same power to arrest without a warrant as a State sheriff and his deputies, and in this we see no error. The appellant seems to include in this ground of appeal a criticism of the presiding Judge for, in contravention of section 26 of article 5 of our State Constitution, charging the jury upon the facts, but our examination of the charge fails to show us that he so charged upon the facts. This exception is overruled.

6 The next — the tenth exception — cannot be sustained. The appellant complains that the Circuit Judge did not read the whole of his first request when he allowed the same; yet in the record itself it appears that the Circuit Judge, in his earnest desire to do full justice, appealed to Mr. Mooney, as appellant’s attorney, in these words: “I think that is your first request.” Now if Mr. Mooney, as the record shows he did, remained silent and did not then complain, he cannot now be heard to complain. This Court will relieve counsel when they have sought and failed to have had justice meted out to them, but when they silently acquiesce in the Court below, when the Circuit Judge seeks to ascertain if he has complied with their wishes, they ought not to be heard when they complain.

As to the eleventh ground of appeal, the quotation from *258the charge of the Circuit Judge by the appellant is its own refutation.

As to the twelfth, it seems that the appellant has abandoned it in’ his argument, for he does not press it here. It is too general to be noticed.

7 As to the thirteenth and fourteenth exceptions. The appellant urges that the presiding Judge charged the jury upon the facts, in contravention of section 26 of article 5 of the Constitution of South Carolina. We do not so regard the Judge’s language, and these exceptions are overruled.

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