120 S.E. 499 | S.C. | 1923
Lead Opinion
December 13, 1923. The opinion of the Court was delivered by The defendant was tried upon an indictment charging him with the murder of Cary Hatcher, at Warrenville, in Aiken County, on Sunday morning, July 30, 1922. He was convicted of murder, with recommendation to mercy, and sentenced to life imprisonment under the law.
The evidence for the State tended to establish the following facts: The defendant was a mill deputy, a peace officer, for the industrial community of Warrenville. A few days before the homicide, there had been a Democratic club meeting at which delegates to the county convention had been elected. The defendant was among the delegates elected. On the Sunday morning of the homicide, the defendant approached several persons who had gathered at the front of a store run by one Polatty; Hatcher being among them. The legality of the club meeting was being discussed, Hatcher stating that it was illegal. The defendant replied that any man that said it was illegal was a (vile epithet). Hatcher made for Gregory with a knife in his hand, but some of those present intervened and prevented a clash. Hatcher threw his knife on the ground and Gregory picked it up. One of the bystanders induced Gregory to return the knife to Hatcher, who put it in his pocket. They continued to quarrel, and Hatcher invited Gregory outside of town to settle the matter. Gregory then put his face almost into Hatcher's face and, vilely cursing him, dared Hatcher to hit him. Hatcher with his fist struck Gregory on the side of his head. Gregory reached for his gun, and Hatcher turned and started away from him. Gregory had difficulty in drawing his weapon, and by the time Hatcher had gotten about 10 feet away, Gregory fired, striking Hatcher in the back, the bullet entering about three inches from *97 the median line, going clear through his body and coming out at his breast. Hatcher died in a few minutes.
The defendant denied that he had cursed Hatcher, or that he had put his face in Hatcher's face and dared him to hit him. He testified that the blow that Hatcher delivered was a staggering one; that he thought he was being attacked with the knife he had given back to Hatcher; that he shot in self-defense when Hatcher was about three feet away preparing to attack him again.
It seems necessary to consider the exceptions seriatim. Let them appear in the report of the case.
Exception I. Upon the trial the State offered the testimony of a witness Sullivan, to the effect that at the ice cream parlor, 150 yards from the scene of the homicide, about 10 or 15 minutes prior to the shooting, Gregory came up to where the witness and another were talking; that he appeared to be drinking, "pretty full," and smelt of corn liquor; that in reply to witness, Gregory said, "You can't prove one of your ________________ lies by me"; that witness had cut his hand and had it tied up; that Gregory asked him," What is the matter with your __________ __________ hand"; he replied that he had cut it; Gregory replied:
"You are a _____________ lie. You are trying to run a stall over Ed Wall, and Ed Wall is my overseer."
Upon objection to this testimony the presiding Judge ruled: "If the testimony shows that he was cursing and all just previous to the homicide, then that would throw light on the state of his mind, and I hold that would be competent."
Under the cases of State v. Miller,
In the Rowell Case the Court said:
"It is always well to let the jury understand what was the condition of the accused as shown by his conduct and language preceding the deadly encounter. It the defendant was drunk, quarrelsome, insulting, these facts are relevant. It is always to be desired that the jury should understand how the accused was deporting himself immediately preceding the homicide."
The circumstances in that case showed that the conversation admitted preceded the homicide about 30 minutes, that it tended to show the condition and temper of the defendant, and was not at all connected with the homicide.
In the Miller Case, evidence of the defendant's unprovoked, insulting and violent demeanor towards a colored man, away from the scene of the homicide and about 10 minutes prior thereto, in no wise connected with the circumstances of the homicide, was held admissible, as not violating the rule against proof of distinct and independent offenses, but upon the ground that it "tended to show that the defendants were, a short time before the homicide, approaching the place where it occurred, armed with a deadly weapon and with a mind ready for mischief. The conduct, actions and general behavior of the accused immediately before the killing is admissible to show that he was armed and in a vicious humor."
Exception III. Another witness for the state, Yaun, was produced, who testified that he met the defendant 10 or 15 minutes before the shooting, between the ice cream parlor and the scene of the homicide, and that the defendant seemed to be "drinking, or mad, or something"; that Gregory did not return his salutation, "was out of his usual way." Similar objection and ruling were made. *99
The testimony was admissible for the reasons given in the disposition of the first exception.
Exception IV. Another witness for the state, Wilson, a small boy, was produced, who testified that about 20 minutes before the shooting Gregory was sitting in front of the post office; that the witness asked Gregory to let him read what was on his badge; Gregory said, "Go on away, I don't feel like fooling with you;" that the witness smelled whiskey on Gregory's breath and left him. The "Case" does not show that any objection was made to this testimony; and, if it had been, the objection was untenable under the rule above stated.
Exception V. Another witness for the State, Renew, a small boy, was produced, who testified that he saw Gregory sitting on a stone near the post office, and asked him to let him shine his shoes; that Gregory told him to "go to h____." The "Case" does not disclose that any objection was interposed to this testimony; and, if it had been, it could not have been sustained under the rule above stated.
Exception II. (out of its numerical order). A witness for the State, Johnson, testified that Brown, the superintendent who appointed Gregory deputy sheriff in 1914, was then in the asylum. When the witness Sullivan was asked on cross-examination if Timmerman, the present superintendent, was crazy or not, the question was ruled inadmissible for the reason that the law presumes every man sane. The question was utterly irrelevant to any issue in the case, and was properly ruled inadmissible.
Exception VI. A witness for the defendant, Rhoden, was asked about the legality of the club meeting and election of delegates to the county convention, apparently in reply to the declaration of Hatcher in reference thereto which provoked the quarrel. Upon objection by the State the testimony was excluded as irrelevant. Whether Hatcher was right or wrong in his charge of illegality *100 was entirely immaterial to the issue then being tried; the testimony was properly excluded.
Exception VII. The witness for the defendant, Wilson, was sitting near the scene of the homicide talking with one Babe Polatty. When the quarrel started, Polatty's attention was attracted, and he exclaimed "What are they doing?" or, "What are they going to do?" This testimony came out without objection on the part of the State. After it had been given, the attorney for the State interposed: "We object to what was said between this witness and somebody else." The attorney for the defendant insisted: "Any explanation voluntarily made at the time this thing was going on would be competent." The Court ruled: "That is not competent in my judgment." The defendant made no effort to prove "any explanation voluntarily made." Possibly the word "explanation" is a misprint for "exclamation"; if so, the exclamation of Polatty had no probative force and its exclusion could not possibly have affected the defendant.
Exception VIII. A witness for the defendant, Rhoden, attempted to testify that about 25 or 30 steps from the scene of the homicide, as he was approaching the crowd, he met a boy who said, "I believe there is going to be trouble there." The testimony was excluded. Even conceding that it was a part of the resgesta, the statement had no probative force, one way or the other, and its exclusion was harmless.
Exception IX. The entire charge of the presiding Judge on the subject of bringing on the difficulty, beginning at folio 234 and ending with folio 238, will be reported. The Court was considering the words of the defendant, and in the discretion allowed the jury to consider or not the words used, he charged more favorably to the defendant than he was entitled to, as it was the duty of the jury to consider them as bearing upon the plea of self-defense. *101
Exception X. The entire charge in this connection, beginning at folio 239 and ending with folio 241, will be reported. It will then be seen that the presiding Judge fully and correctly charged the law, his reference to retreating to the wall being fully explained.
Exceptions XI, XII, XIII. The contention of the appellant is that the verdict having been rendered at 20 minutes past 12 o'clock midnight Saturday of the second week of Court, is void for want of jurisdiction of the Court at that time.
The time for holding the Fall term of the Court of General Sessions for Aiken County is thus fixed by Statute (Section 50, Code Civ. Proc., 1922):
"The Court of General Sessions for the County of Aiken * * * on the * * * fourth Monday in September, two weeks."
On account of the illness of Hon. George E. Prince, Judge of the Tenth Circuit, who had been assigned to hold said Fall term, Hon. S. McGowan Simkins, of Edgefield, was duly appointed special Judge and commissioned by the Governor to hold the same.
The Court was duly opened on the fourth Monday in September, the 25th of the month, and continued during that and the following week. The trial of the defendant began on October 5, 1922, (Thursday); the jury retired for consideration of the case on Saturday afternoon, the 7th; they returned their verdict at 12:20 a. m. Saturday night or Sunday morning.
The contention of the appellant is that the term expired by limitation at 12 o'clock midnight of Saturday, October 7th, and that at 20 minutes after 12 o'clock the verdict and following sentence were coram non judice and void.
There are several reasons why this contention cannot be sustained:
(1) The term is fixed by law to commence upon a certain Monday and continue for two weeks. In the absence *102 of a contrary intention, "two weeks" means two periods of seven days each, and the two weeks expired, certainly, not earlier than 12 o'clock midnight of the second following Sunday. In the case of Hiller v. English, 4 Strob., 486, it was held, quoting from the syllabus:
"Where a Court is directed to sit two weeks, if a jury, having retired to consider their verdict before midnight of Saturday in the first week, return into Court after midnight and before daylight of Sunday, their verdict may be received and published."
If a verdict can be lawfully received upon an intervening Sunday, there appears no good reason why it should not be received upon the Sunday which is the concluding day of the term.
(2) Even if the second Sunday cannot be considered as the concluding day of the term and the term should be held to have expired at 12 o'clock midnight of Saturday preceding, following the custom of Parliament, the Legislature, conventions, boards of directors, and other bodies keeping a journal, a transaction completed within so short a time as in this case may well be entered as the day's proceedings.Hiller v. English, 4 Strob., 496.
(3) The verdict was received at 12:20 o'clock; whether solar or standard time is not stated. If controlled by solar time, as is plausibly presented in the case of TexasCo. v. Hightower,
(4) Under Section 42, Code Civ. Proc., 1922, the presiding Judge had the power to continue the Court into the next week in order to finish the business and if he had done so the case would have fallen squarely under the decision in Hiller v. English, 4 Strob., 486. If the presiding Judge should be a regular Circuit Judge with an assignment at another place, that section provides for an assignment of another Circuit Judge or the appointment of a special *103 Judge to finish the business of the Court. The special Judge having no other appointment was free to continue the Court beyond the two weeks as long as might be necessary.
In Barnes v. State,
In Richter v. Koopman,
In Taylor v. Ervin,
"Under Code, § 910, and statutes amendatory thereof, which provide for Courts to begin on a Monday named, and to last for one week, the term embraces the following Sunday, unless the term is sooner adjourned,"
— and that the reception of a verdict on Sunday was legal, the Court adding, "as has been repeatedly held," citing a number of cases.
The case of State v. McLemore, 2 Hill, 680, which apparently takes a contrary view, is fully explained by Judge Wardlaw in the case of Hiller v. English, supra.
If, as indicated by some authorities, while the verdict may be received on Sunday, as a matter of necessity and mercy, sentence cannot be imposed upon a nonjuridical day (see Coleman v. Henderson, Litt. Sel. Cas. [Ky.], 171, 12 Am. Dec., 290), in this particular case it could not possibly affect the interest of the defendant whose sentence is fixed by the law, and it would be small comfort to him to remand the case for the identical sentence which has been imposed.
The judgment of this Court is that the judgment of the Circuit Court be affirmed. *104
MR. CHIEF JUSTICE GARY AND MR. JUSTICE MARION concur.
Dissenting Opinion
The appellant was tried and convicted of murder, with recommendation to mercy. Such facts as are necessary will be stated in the discussion of the questions raised.
I. The State was allowed to prove, over the objections of the appellant, that at several times on the morning of the homicide, and before the homicide, the appellant spoke harshly to other people. The defendant did not put his character in issue. The State cannot attack the defendant's general reputation unless the defendant shall himself put his reputation in issue. The purpose of allowing proof of general reputation is to show that the defendant is probably not the aggressor. The effect of showing that the defendant was in a bad humor that morning was the same. It tended to show that the defendant was the aggressor, and was clearly incompetent. It is said that the case of Statev. Rowell,
The testimony of the witness Yaun was as follows:
"I saw Mr. Gregory on the Sunday morning of the killing, 15 or 20 minutes before, between the ice cream parlor and kenny's store.
"Q. Did you speak to him? A. Yes, sir. *105
"Q. Did he speak to you? A. No, sir; I didn't hear him.
"Mr. Williams: I want it understood that we object to this line of testimony.
"The Court: I understand that.
"Q. What was his humor? A. He seemed to be drinking, or mad, or something. He was out of his usual way. I have known Mr. Gregory intimately for 15 years, and I know when he is drinking and when he is not. This was 10 or 15 minutes before the shooting. I had just gotten home and got on the porch and sat down when the shooting happened."
The testimony was a mere opinion based upon no fact, and then the witness did not know whether the defendant was "drinking, or mad, or something."
The assignment of error should be sustained.
II. When the State's witness Arthur Johnson was on the stand, he stated on the cross-examination that the defendant had first been appointed deputy sheriff by a man named Brown who is now in the asylum. The defendant then offered to show that he had been reappointed by good men who were not in the asylum. This testimony was objected to by the State and excluded.
This assignment of error cannot be sustained. The testimony was clearly irrelevant to any issue in the case.
III. The quarrel between the defendant and the deceased was the result of a club election. The deceased stated that the defendant, one of those elected, was illegally elected. The legality of the election had nothing to do with the guilt or innocence of the accused. This assignment of error cannot be sustained.
IV. The appellant complains of error in the following charge:
"Human life is a tender thing, and the law says that, before you strike, you must retreat to the wall." *106
His Honor charged the jury:
"The law of self-defense is grounded on the foundation of necessity. The law does not allow a man, though he may honestly believe he is in peril of receiving serious bodily harm or losing his life, to shoot down another if there is a reasonable or probable means of escape — not possible means, but a reasonable and probable means of escape. Human life is a tender thing, and the law says that, before you strike, you must retreat to the wall; but the party does not have to retreat if by retreating he increases his danger of receiving serious bodily harm or losing his life, for a man may be surrounded by circumstances, either real or apparent, that brings him to the honest conclusion that he is about to receive serious bodily harm or lose his life, and that in case if there was no reasonable grounds of escape, and that an ordinary man would have thought so, that he would not be bound to retreat, and if he has shown that by the preponderance of the testimony he would be entitled to a verdict of acquittal at your hands."
If the defendant desired any fuller statement, it should have been requested. This assignment of error cannot be sustained.
V. The verdict was rendered at 12:20 o'clock p. m. on Sunday, October 8, 1922.
The statute taken from appellant's argument is:
"The Court of General Sessions for the County of Aiken shall be held at Aiken on the second Monday in January, two weeks; the first Monday in May, two weeks, and the fourth Monday in September, two weeks."
The appellant claims that Sunday is a dies non, and the term expired at 12 o'clock on Saturday night.
The point is so fully covered by Hiller v. English, 4 Strob., 507, that no other statement is necessary:
"I think that an examination of our statutes would show that the day on which the verdict in the case now under consideration was received (even admitting it to have been *107 Sunday at noon), being within the term of two weeks, which, without exception of any days, is, by the Act of 1845 (11 Stat., 316), prescribed for Richland district, was, by Act of the Legislature, a judicial day, whatever may have been the common law on the subject; not that I suppose the Legislature has commanded or contemplated the ordinary sitting of a Court on Sunday, but that I find the legislative will expressed in terms which plainly import, according to the established canons of interpretation, that judicial business is authorized during the whole of a term which includes Sunday; and I receive this expression as a removal of prohibitions and penalties, which at least would justify proceedings on Sunday in cases of strong necessity, in the exercise of a sound discretion that would do violence to no conscience and encounter no prejudice."
This exception is overruled.
Some of the other exceptions are mere incidents peculiar to the last trial and some should not be discussed, in view of the fact that a new trial should be ordered.
I think that the judgment should be reversed, and a new
MR. JUSTICE WATTS concurs. trial ordered.