43 S.C. 52 | S.C. | 1895
The opinion of the court was delivered by
At the October (1893) term of the Court of General Sessions for Lancaster County, the defendant, John A. Faile, with William C. Faile and Dunbar Bobertson, was tried for the murder of John L. Baker, alias James L. Baker, alias Buster Baker. The jury acquitted William C. Faile and Dunbar Bobertson, but found the defendant, John A. Faile, guilty, who was thereupon sentenced to be hanged on the 12th day of January, A. D. 1894.
At a previous term of said court, an order was granted appointing H. H. Newton and W. S. Blakeney, Esqs., solicitors to prosecute this case, in the place of M. J. Hough, solicitor, who was disqualified by reason of having been paid a retainer fee by the defendants, before he was elected solicitor. In the indictment as found by the grand jury, the deceased was described as “John L. Baker.” At the commencement of the trial, H. H. Newton and W. S. Blakeney, acting solicitors,
A motion for new trial was made by the defendant, John A. Faile, upon several grounds, which will be set forth in the report of this case. The motion was refused. The defendant, John A. Faile, appealed to this court on the grounds stated in his motion for a new trial, and on the additional ground: “That the indictment as found by the grand jury contained the name of John L. Baker alone as having been murdered by John A. Faile, Wm. C. Faile, and Dunbar Robertson, and the aliases, to wit: the words ‘alias James L. Baker, alias Buster Baker,’ were inserted in the indictment in open court after said finding of the grand jury, and without warrant of law.” Also, upon the additional ground that his honor, the presiding judge, erred in excluding testimony as to the alleged uncommunicated threats by the deceased (this court upon motion having allowed the defendant, infavoremvitce, to except to the ruling).
There was in this case a compliance with all these requirements. The deceased was shot on Sunday night, and died the succeeding Monday night, only surviving after the difficulty about twenty-four hours. He was wounded by two balls. One went directly through the upper part of the thigh, striking the femur; the other ball glanced off the crest of the illium, curved, and came through the intestines, and through the left lobe of the liver, striking against the ninth rib on the same side, and falling down in the cavity of the bowels. The last mentioned was the fatal ball. The doctor was asked: “Well, doctor, what have you to say about the cause of death on that man whom you examined?” He answered: “Well, that ball that made that curve was the fatal ball. It penetrated the bowels in several places, and went through the lower left lobe of the liver, which would have been necessarily fatal. I found the contents of the bowels all loose in the cavity when I cut into it; I found the contents of the bowels all run out, and the mesenteric membranes were wounded.”
The dying declarations were made on the night of the homicide. The doctor testified that the mind of the deceased was clear, and he said he was killed. Doc. Baker, his brother, testified that he said, “Doc., I hate to tell you, I am bound to die;” also, that the deceased said he was shot in the bowels, and that Buster had no hope of recovery. A. F. Harris testified that Buster said he was a dying boy, and could not live. E. J. Lowry testified that he heard deceased say he was a ruined boy, and was bound to die. Deceased said to George Huntington, “George, I am bound to die, I am bound to die, I am
The court in the case of State v. Blakeney, 33 S. C., 111, uses this language: “If the indictment had been defective in the particular alleged by the appellant, to wit: in failing to state the place or the death of the deceased, then we think the grounds of appeal would demand a reversal of the judgment below. We suppose that it can hardly be necessary to cite authority to the fact that it is absolutely essential in an indictment like that here, that the place of the death of the party killed should be alleged therein, and that, in the absence of such allegation, such indictment is fatally defective, and should be quashed on motion made; and we think, further, that such a defective indictment is beyond the reach of amendment. True, under section 5 of the act of 1887, 19 Stat., 830, much of the useless phraseology which characterized indictments in former times may be dispensed with, and omissions of mere forms may be cured by amendments; but this act has neither dispensed with essential allegations nor has it attempted to cure their
The question in this case, however, is not whether such amendment is against the constitutional right guaranteed to the prisoner for his protection, but whether he has waived his right to insist upon such constitutional provision. These provisions of the Constitution are for the protection and benefit of the prisoner, and can be waived by him when, in his judgment, it is to his advantage to do so. Herman on Estoppel and Res Judicata, vol. 2, p. 954, says: “Waiver is voluntary, and implies an election to dispense with something of value, or forego some advantage which the party waiving it might at his option have demanded or insisted upon. A waiver takes place where a man dispenses with the performance of something which he has a right to exact. A party may waive a constitutional as well as a statutory provision for his benefit, as a trial by jury, though that mode is guaranteed to him by the Constitution; and when waived by such party, he will be estopped from setting them up or claiming them.” The same -author, at page 958, says: “A defendant has a constitutional right to a speedy trial, yet he may waive this provision by obtaining a continu
Although the Constitution confers upon the accused the right to meet the witnesses against him face to face, it is an unquestioned practice for the accused to waive such right, and consent to the introduction in evidence of testimony taken upon a former trial. The Constitution confers upon the prisoner the right to be tried by an impartial jury, yet he waives such right by failing to object at the proper time. In the case of State v. Stephens, 11 S. C., 319, the court, in speaking of objections to the drawing, summoning, and empanelling of the petit jury, says: “It is too late to allege such defects either in the panel or in individual jurors, after the swearing of the jury,” citing a number of authorities.
The case of State v. Thompson, Cheves, 31, shows that objection to a defective indictment may be waived by failing to interpose such objection at the proper time. In that ease the court quotes with approval the following rule from 1 Chit. Or. L., 202, to wit: “The name and addition of the party indicted ought regularly to be truly inserted in every indictment; but whatever mistake may be made in these respects, if the defendant appears and pleads not guilty, he cannot afterwards take advantage of the error.” The court then proceeds as follows: “It was observed that there was no hardship in the rule, for the prisoner lost no advantage or privilege by it on his trial, and if he had need afterwards to resort to a plea of antrefois convict, he wonld be allowed to show that he was the same person heretofore convicted by the name of William Foster.” The syllabus of the case of State v. Quarrel, 2 Bay, 150, in which the accused was convicted of murder, is as follows: “If an alien is drawn and empanelled as a juror, it is a good cause of challenge before trial, but if permitted to be sworn by the prisoner, it is too late after trial and conviction to make it a ground for a new trial.” It might work a great hardship on the prisoner not to be allowed to waive even a constitutional right. He may be influenced to consent to such waiver because his witnesses are present, and he may fear that he will not be able to secure their attendance at a future term of the court, or he
Mr. Justice Brewer, in speaking for the court in the case of In re Wilson, 140 U. S., 575, uses the following language in meeting an objection to the alleged unconstitutionality of the grand jury, which found a true bill on the indictment under which the prisoner was convicted: “Indeed, it may be considered doubtful, at least, whether such defect is not waived, if not taken advantage of before trial and judgment. In the case of United States v. Gale, 109 17. S., 65, a question as to the competency of the grand jury was presented for the first time on a motion in arrest of judgment, and from the decision of the trial court came to this court on a certificate of division. The objection was that in the organization of the grand jury the court, under the authority of section 820, Revised Statutes, excluded from the panel persons otherwise qualified, who voluntarily took part in the rebellion. The unconstitutionality of this section was asserted, but this court declined to pass upon that question, holding that the defendants, by pleading to the indictment and going to trial without making any objection to the grand jury, waived any right of subsequent complaint on account thereof. Mr. Justice Bradley, delivering the opinion of the court, reviews the authorities at length, and shows that they clearly sustain the conclusion announced. The opinion is carefully guarded, and does not reach to the precise question here presented, but its implication and the drift of the authorities referred to is that a defect in the constitution or organization of a grand jury, which does not prevent the presence of twelve competent jurors, by whose votes the indictment is found, and which could have been cured, if the attention of the court had been called to it at the time, or promptly remedied by the empanelling of a competent grand jury, is waived if the defendant treats the indictment as sufficient, pleads not guilty, and goes to trial on the merits of the charge. There is good sense in this conclusion. The indictment is the charge of the State against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation.
The facts in this case show that not only was the waiver made by the prisoner’s attorneys at the commencement of the case, but when Dr. Doster was on the stand, he was asked: “What other name besides Buster did he have?” Answer: “I think he signed his name J. L. Baker.” “You don’t know whether it was James or John?” Answer: “No, sir.” Mr. Hough: “We make no question as to his name.” The prisoner must necessarily have been present when this statement was made, and yet no objection was interposed. The deceased was called “John Baker” in the affidavit of Fannie Hair, used by the prisoners in their application for bail. The deceased was called “John L. Baker” in the testimony of Dunbar Robertson. In cross-examining Fannie Hair, she is questioned as to “John Baker” by defendant’s attorney. The prisoner has in no way been prejudiced by the amendment, and this exception is overruled.
In the case of Little v. State (Tenn., 9 Bax., 573), reported in Cases of Self-Defence, by Horrigan & Thomson, at page 490, this language is used: “The prisoner offered proof of other threats made against him by the deceased, but which had not been communicated to the prisoner, and the proof was likewise rejected. The true rule upon this question we apprehend to be this: previous threats of the deceased communicated to the prisoner, tend to show the state of mind of the prisoner, the apprehension under which he was acting, and tend to illustrate his conduct and motives, in connection with the other facts and circumstances of the case. Previous threats of the deceased against the prisoner, but not communicated to Mm, do not furnish the same evidence of the motives brought to bear upon the prisoner’s mind, and are not admissible for the same purpose. But in all cases where the acts of the deceased in reference to the fatal meeting are of a doubtful character, then evidence which may tend to show that he sought the meeting, or began or provoked a combat, is admissible. And, in this view, previous threats by the deceased, though not communicated to the prisoner, may yet tend to show the animus of the deceased, and to illustrate his conduct and motives, and in some cases might be important in the absence of more direct evidence to show which party began or provoked the fight. Threats of this character are, in proper cases, admissible, but for a different purpose from the former class of cases,” citing quite a number of authorities.
This principle is also discussed with approval in the cases of Stokes v. People, 53 N. Y., 174; Keener v. Georgia, 18 Ga., 194; Campbell v. People, 16 Ill., 18; Holler v. State, 37 Ind., 57; People v. Arnold, 15 Cal., 476. When the plea of self-defence is relied upon, and there is conflict of testimony as to who was the aggressor in bringing about the difficulty, uncommunicated threats made by the deceased against his slayer are competent
The testimony of Dunbar Bobertson was to the effect that the deceased made the first assault upon the defendant, John A. Faile, at the time of the homicide. After he testified, the defendant’s attorneys attempted to prove by the witness, Hennie Craig, that about two weeks before the homicide, when the deceased was loading his pistol, he made threats against the parties indicted for the murder of the deceased, when he heard them making a boisterous noise up the road toward Taxahaw. The presiding judge ruled as follows: “Q. (By attorney:) What did he say? (Mr. Solicitor objects to the declarations of Buster Baker.) The Court: I think if the threats were communicated to one of the defendants, it would be competent. Q. (By attorney:) Did you tell anybody about it? (Mr. Solicitor objects upon the ground that unless the threat was known throughout the community, it is not competent.) The Court: Unless the threat that was made was generally known throughout the community, it is not competent.”
Although there are cases sustaining the ruling of the presiding judge, we prefer to adopt the rule announced in the cases from which we have quoted. We, therefore, think there was error in excluding testimony as to the uncommunicated threats.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for a new trial.
See 41 S. C., 551.